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■  ■     '.'■■' ,.........'  ■  •■' 


THE 


BRITISH  CONSTITUTION 


BY  THE  LATE 

AMOS   DEAN,   LL.D., 

Professor  in  the  Albany  Law  School. 
Author  of  "  History  of  Civilization,"  "  Commercial  Law,"  Etc. 


ROCHESTER,  N.  Y. 

lawyers'  co-operative   publishing  company. 

1893. 


COPTRIGHT,  1883, 

By  AMOS   H.  DEAN. 


E.  R.  Andrews,  Printer  ant>  Rookbindep 


7H 


to 


00 

PREFACE. 


The  British  constitution  is  a  subject  worthy 
Bjthc  most  attentive  study.     The  student  of  polit- 
ical  philosophy  will  here    reap  rewards  richly 
j compensating   for   any   amount   of    labor   and 
research.     The  joint  result  of  Saxon  and  Nor- 
gman  wisdom,  it  has  traveled  through  its  centu- 
•  ries    of    experience,    only   to    continually    add 
_,  strength  to  its   foundations,  beauty  to  its  pro- 
tp  portions,  harmony  in  the  action  of  its  different 
"* forces,  and  the  still  increasing  promise  of  per- 
petuity in  the   blessings  it   confers.     It  is  the 
y largest  monument  of  worldly  wisdom  which  the 
£? centuries  have  to  bequeath  to  us.     The  science 
E  of  government  itself  has  little  to  offer  which  is 
a  not  embraced  in  its  past  history,  or  its  present 
o  organization.       No   one    can    contemplate    this 
3  stupendous  and  beautiful  fabric,  standing  out  in 
all  its  colossal  proportions,  and  realize  that  at 
least  thirty   generations  of  men  have  been  the 
architects  that  have  reared  it  upward,  story  by 

238592 


4  PREFACE. 

story,  without  being  deeply  impressed  with  the 
great  truth,  thai  all  time-lasting  structures  can 
exist  and  l>e  perpetuated  only  through  those 
powers  and  enemies  which  are  common  to  the 
race,  and  actually  exercised  through  its  organic 
life.  It  is  thus  that  the  deficiencies  of  one  man, 
or  one  generation,  are  made  good  by  the  excess 
of  power  developed  through  another  or  others, 
so  that,  in  the  end.  institutions  are  generally  the 
work  of  the  race  of  man,  and  not  of  the 
individual. 


CONTENTS. 


CHAPTER  I. 

PACK 

Anglo-Saxon  Institutions,      -  -      7 


CHAPTER  II. 
Charters  of  Rights,  ...  -24 

CHAPTER  III. 

Origin  and  Growth  of  the  English  Parliament,      S8 

CHAPTER   IV. 
Its  Present  Workings,      -  -  •  -  78 


The  British  Constitution. 


chapter  I. 

ANGLO-SAXON     INSTITUTIONS. 

The  British  constitution  is  to  be  considered: 

I.  In  its  past  history. 

II.  In  its  present  workings. 

In  its  past  history  our  attention  will  mainly 
be  directed: 

1.  To  its  sources,  the  Anglo-Saxon  institutions, 
in  connection  with  the  modifications  introduced 
by  the  Norman  conquest. 

2.  The  charters  of  rights  successively  wrested 
from  the  king  by  his  principal  barons. 

3.  The  origin  and  growth  of  the  English  par- 
liament, including  the  successive  steps  or  stages 
by  which  the  two  houses  attained  their  political 
power,  and  the  principle  of  representation  be- 
came firmly  established. 

The  Anglo-Saxon  institutions  were  the  growth 


8  l  HK    KKITIS1I    CONSTITUTION. 

ttt'  several  centuries.  Brought  there  originally 
by  the  hardy  followers  of  Hengist  and  Horsa, 
they  were  essentially  modified,  and  new  ones 
originated  in  consequence  of  the  peculiar  posi- 
tion under  which  their  dominion  was  established, 
and  the  circumstances  by  which  they  were 
always  surrounded.  They  were  compelled  to 
sustain  themselves  among  a  conquered  people, 
the  Britons,  and  that  fact  no  doubt  created  new, 
or  greatly  modified  existing  institutions. 

In  respect  of  property  and  condition,  there  were 
three  classes.  Of  these  the  first  were  slaves,  who 
were  probably  mostly  or  wholly  made  up  of  the 
conquered  Britons.  The  second  were  ceorls,  who 
Avere  freemen,  and  formed  the  bulk  of  the  pop- 
ulation. The  third  were  eorls  or  thanes,  who 
formed  the  nobility  or  gentry,"  the  former  hav- 
ing reference  to  birth,  while  the  latter  derived 
his  title  through  the  possession  of  landed 
property:  It  was  the  ownership  of  landed 
property  that  mainly  gave  to  the  Saxon  his 
standing  and  political  rights.  There  was  an 
aristocracy,  but  not  limited  to  hereditary  descent. 
It  was  not  the  birth,  but  the  acquisition  of  a 

♦Creasy.  40.  41. 


ANGLO-SAXON    INSTITUTIONS.  9 

defined  amount  of  landed  property,  that  trans- 
formed the  ceorl  into  the  thane. 

The  lowest  and  simplest  political  division 
among  the  Saxons  was  the  township,*  which 
had  its  reeve  or  elective  chief  officer,  and  also 
four  good  and  lawful  men,  who  with  him 
represented  the  township  in  the  courts  of  the 
hundred  and  the  shire.  These  were  elected  by 
the  commonality,  who  also  had  the  regulation 
of  their  own  police.  If  any  crime  was  com- 
mitted in  their  district  they  were  bound  to 
pursue  and  apprehend  the  offender.  Each  town- 
ship generally  had  its  own  local  court,  which 
was  subordinate  to  the  hundred  court,  and  also 
to  the  shire,  moot,  or  county  court.  These 
Saxon  townships  have  very  generaily  given  way 
to  the  Norman  manors,  and  the  modern  par- 
ishes. 

The  Saxon  hundred  was  a  mere  territorial 
division,  and  was  subdivided  into  tythings. 
Each  hundred  had  its  court,  held  monthly,  and 
subordinate  to  the  shire  or  county  courts,  which 
were  held  once  a  year,  and  were  presided  over 
by  a  bishop  or  earl. 

*Creasy  43. 


lo  THE   BRITISH    CONSTITUTION. 

Independent  of  the  institution  of  slavery, 
there  were  two  oppressive  customs  among  the 
Saxons.  One  was  the  system  of  frank  pledge, 
by  which  every  man  was  bound  to  be  enrolled 
in  some  tything,  the  members  of  which  being. 
to  a  large  extent,  mutually  responsible  for  each 
others'  good  conduct."  The  other  was  that 
every  member  of  the  commonality  was  bound 
to  place  himself  in  dependence  upon  some  man 
of  rank  and  wealth  as  his  lord.  Otherwise  he 
was  liable  ■  to  be  slain  as  an  outlaw.  The  result 
of  this  was  that  many  of  the  ceorls  were  legally 
annexed  to  the  lands  of  their  lords,  but  in  other 
respects  were  personally  free. 

A  large  proportion  of  the  population  was 
devoted  to  agriculture.  There  were,  however, 
some  towns  that  had  already  acquired  import- 
ance. These  were  called  burghs,  fortified 
places.  In  these,  also,  the  free  Anglo-Saxon 
spirit  was  manifested.  The  citizens  elected 
from  their  own  number  their  local  officers,  those 
necessary  for  the  purposes  of  municipal  govern- 
ment, at  the  head  of  whom  was  their  borough 
reeve,  who  presided  over  their  local  courts,  and 

.Creasy.  44. 


ANGLO-SAXON    INSTITUTIONS.  11 

in  time  of  war,  led  the  armed  citizens  to  the 
field. 

The  trial  by  jury  is  an  institution  attributed 
to  the  Anglo-Saxons,  and  certainly  its  rudiments 
are  traceable  to  Saxon  jurisprudence. 

In  regard  to  the  government,  the  constitutions 
in  the  several  states  composing  the  heptarchy, 
and  subsequently  in  the  united  kingdom,  appear 
to  have   been  much  the  same. 

At  the  head  of  the  state  was  the  king,  but  the 
descent  of  the  crown  was  irregular.  The  form 
of  an  election  seems  to  have  been  observed,  and 
a  coronation  and  acceptance  by  the  people 
necessary.* 

When  crowned  and  received,  he  was  the 
national  executive,  and  an  essential  part  of  its 
legislature.  He  received  and  expended  the 
revenue;  was  the  center  and  source  of  all  juris- 
prudence; the  chief  of  the  nation's  armies;!  the 
head  of  its  landed  property;  the  lord  of  the  free 
and  of  all  burghs  except  such  as  he  had  granted 
to  others. 

Coexisting  with  the  king,  if  not  anterior,  and 
his   elector,    was   the   witenagemote,  the   great 

*Brougham  m,  197.  tTurner's  Anglo-Saxons,  in,  217. 


IS  THE   BRITISH    CONSTITUTION. 

council  or  assembly  of  the  barons,  who  con- 
vened together  on  the  summons  of  the  king,  and 
over  whom  the  king  himself  presided.  This 
great  council  of  witan,  or  wise  men,  consisted  of 
nobles,  holding  land,  the  superior  thanes,  arch- 
bishops, bishops,  abbots  and  priors,  and  milites, 
or  those  who  were  afterwards  called  knights. 
There  was  in  this  council  nothing  like  represen- 
tation, and  hence  nothing  strictly  resembling 
the  modern  parliament.  It  was  an  independent 
council,  deriving  its  strength  from  the  individual 
power  of  its  members,  not  from  their  acting  in 
a  representative  character.  The  English  mon- 
archy has  always  had  about  it  this  interesting 
feature,  viz:  it  has  been  the  government  of  the 
king  in  council.  Thus  from  the  earliest  periods 
the  witan.  or  wise  men,  composed  the  council  of 
the  king,  and  the  laws  were  made  in  the  joint 
names  of  both. 

The  witan  elected  the  king  from  among  the 
members  of  the  blood  royal;  sometimes  deposed 
him  for  misconduct;  formed  the  supreme  court 
of  justice  in  civil  and  criminal  cases;  and  ad- 
vised  the  king  on  questions  of  war  or  peace, 


ANGLO-SAXON    INSTITUTIONS.  13 

and  also  on  all  important  measures  of  govern- 
ment. 

The  regular  revenue  was  chiefly  derived  from 
the  royal  domains,.. and  the  direct  taxes  raised 
by  the  witenagemote. 

There  was  a  regular  church  establishment, 
and  a  body  of  nobles,  some  of  whom  were  dis- 
tinguished by  their  birth,  others  by  their  office. 

Thus  the  Anglo-Saxon  government  was  an 
aristocratic  monarchy,  a  kind  of  feudal  aristoc- 
racy, in  which  the  whole  political  power  was 
shared  between  the  sovereign  and  the  nobles, 
clerical  and  lay.*  The  third  estate,  the  com- 
mons, had  no  share  whatever  in  the  Anglo- 
Saxon  form  of  government. 

We  are  now  ready  to  contemplate  the  Nor- 
man. This  constitutes  the  fourth  element, 
foreign  in  its  nature,  which  enters  into  the  com- 
position of  the  English  nation.  The  first  in 
order  was  the  Roman;  the  second,  the  Anglo- 
Saxon;  the  third,  the  Dane;  and  the  fourth,  the 
Norman.  Each  of  these  successively  subdued, 
and  for  a  time  ruled  in  England.     Of  these,  the 

•Brougham,  m,  202. 


14  THE    BRITISH    CONSTITUTION. 

Danish  was  the  least  fruitful  in  results,  while 
the  Saxon  was  the  most  important  and  the  most 
lasting;  and  the  Norman,  the  next  in  order,  as 
regards  both  its  present  and  future  conse- 
quences. 

The  year  1066  was  signalized  by  the  over- 
throw of  the  Saxon  monarch,  and  the  accession 
of  William  the  Conqueror  to  the  English  crown. 
A  few  days  only  transferred  him  from  the  Nor- 
man dukedom  to  the  English  throne. 

Normandy  was  a  large  province  in  France, 
bordering  upon  the  English  channel.  A  cen- 
tury and  a  half  had  rolled  away  since  the  Nor- 
mans under  Rollo,  their  first  duke,  had  con- 
quered, and  obtained  by  treaty,  this  province, 
which  they  called  Normandy.  Here  their  stern 
northern  nature  had  become  modified  and  con- 
siderably ehanged  by  the  new  civilization  that 
surrounded  them,  the  new  influences  under 
which  they  were  brought,  and  the  circumstances 
under  which  they  had  existed  for  so  long  a 
period  of  time.  Their  national  character  had  its 
bright  and  dark  side.  In  the  first  we  discern 
that  orderly  and  intelligent  spirit,  "which  made 
them  establish  and  preserve  in  their  province  a 


ANGLO-SAXON    INSTITUTIONS.  15 

regularity  of  government,  system  and  law, 
which  contrasted  strongly  with  the  anarchy  of 
the  rest  of  France.  The  Norman  had  a  steady- 
fixity  of  purpose,  a  discernment  of  the  necessity 
of  social  union  and  mutual  self-sacrifice,*  of  free 
will  among  the  individual  members  of  a  state 
for  the  sake  of  the  common  weal.  In  the  sec- 
ond we  perceive  in  the  Norman  nobility,  pride, 
statecraft,  merciless  cruelty,  and  a  coarse  con- 
tempt for  the  industry,  rights,  and  feelings  of 
all  whom  they  considered  the  lower  classes  of 
mankind." 

The  institutions  of  continental  Europe,  took 
their  shape,  in  the  outset,  from  the  conquest  of 
the  Roman  provinces  by  the  hordes  of  wander- 
ing barbarians  ;  the  settlement  in  those  prov- 
inces ;  the  new  circumstances  under  which  they 
were  placed  ;  the  new  relations  arising  between 
the  conquerors  and  the  conquered  ;  and  the 
modifying  influence  exerted  by  the  institutions 
of  the  one  over  those  of  the  other.  The  barba- 
rians brought  with  them  no  fixed  and  determin- 
ate form  of  social  life,f  and  on  the  side  of  the 
Romans  that  life  was  actually  dying  of  inanition. 

♦Creasy,  55.  *GuIzot.  Representative  Government,  281. 


It!  THE    BRITISH    CONSTITUTION. 

Hence  long  disorders  arose,  the  reign  of  force 
and  dismemberment  of  sovereignty. 

The  Norman  conquest  of  England  broughl 
with  it  no  such  results.  Between  the  Normans 
ami  Saxons  existed  many  points  of  resemblance. 
They  had  the  same  origin,  analogous  manners 
and  language,  almost  identical  civilization  and 
warlike  spirit.  There  could  not,  therefore,  be 
as  on  the  continent,  a  general  and  permanent 
abasement  or*  one  race  before  the  other.  No- 
thing short  of  entire  annihilation  of  the  Saxon 
race  could  prevent  its  exerting  an  active  and 
powerful  influence  upon  the  Norman. 

Again,  the  political  institutions  of  the  two, 
although  not  identical,  were  extremely  analo- 
gous.* Absolute  power  never  existed  in  Eng- 
land as  on  the  continent.  Oppression  existed 
in  fact,  but  was  never  established  by  law. 

The  Norman  and  Saxon  professed  the  same 
religion,  and  one,  too,  the  Roman  Catholic,  that 
everywhere  had  the  same  hierarchy,  the  same 
orders  of  clergy,  the  same  faith  and  forms  of 
worship.  There  was  this  important  difference 
Avhich  led  to  fruitful  results.     On  the  continent 

•Guizot,  2S2 


ANGLO-SAXON    INSTITUTIONS.  17 

the  clergy  were  Romans  ;  in  England.  Saxons 
and  Normans.  In  the  former,  they  Avere  more 
on  the  side  of  kings  ;  in  the  latter  they  assumed 
a  place  among  the  landed  aristocracy,  and  in 
the  nation.  Their  political  power,  in  the  latter, 
has  always  been  on  the  decline. 

It  naturally  resulted  from  all  this,  that  each 
people  having  institutions  analogous  to  each 
other,  and  pressing  them  forward  with  an  almost 
equal  energy,  their  coexistence  and  conflict 
would  serve  to  modify  each  other,  and  to  give 
such  modified  result  a  character  of  greater 
strength  and  permanence. 

The  institution  which  marks  most  strongly 
the  establishment  of  the  Norman  in  England, 
was  the  feudal  system.  Some  traces  of  this 
system  may  be  found  in  Saxon  jurisprudence, 
but  its  oppressive  weight  never  bore  strongly 
upon  the  nations  previous  to  the  conquest. 

This  system  was  completely  established  in 
Normandy.  The  comparatively  small  extent  of 
the  province ;  the  establishment  there  of  the 
conquering  Normans  over  the  subject  race  which 
they  subdued  ;  the  peculiar  elements  of  the 
Norman  character  ;  all  combined  to  perfect  that 

15  1* 


L8  THE    BRITISH   CONSTITUTION. 

system,  and  thus  give  to  Normandy  whatever  of 
benefil  or  injury  could  legitimately  be  derived 
from  it.  William,  having  had  his  birth,  educa- 
tion, and  experience  as  a  ruler,  all  within  the 
operations  of  this  system,  could  not  rest  quietly 
until  its  firm  establishment  upon  English  soil. 
The  circumstances,  formerly  adverted  to.  which 
favored  its  introduction  and  growth  in  the  Ro- 
man provinces  on  the  continent  upon  the  con- 
quest and  settlement  of  the  barbarians,  would 
apply  with  much  greater  force  to  the  Norman 
conquest  and  settlement  in  England.  The  >ub- 
ject  races  on  the  continent  were  incapable  of 
much  resistance,  and  their  uprising,  under 
oppression,  could  be  little  feared.  Ilence  the 
feudal  system  was  not  driven  to  expend  all  its 
energies  in  preserving  a  quiet  conquest. 

But  the  settlement  of  the  Normans,  and  the 
preservation  of  their  authority,  were  to  be 
effected  among  a  people  as  brave  and  warlike 
almost  as  themselves.  Hence  the  early  intro- 
duction, and  rigorous  enforcement,  among  the 
Saxons  of  England,  of  that  system  as  it  then 
existed  in  the  province  of  Normandy.  The 
result   afforded   a  full   illustration  of   this  fact. 


ANGLO-SAXON    INSTITUTIONS.  19 

On  the  continent,  after  the  conquest  and  settle- 
ment of  the  barbarians,  we  hear  very  rarely  or 
any  insurrections  of  the  original  inhabitants. 
The  wars  and  conflicts  were  between  the  con- 
querors themselves.  But  in  England  we  find 
them  between  the  conquerors  and  the  conquered 
people. 

The  results  of  the  establishment  of  this  sys- 
tem, with  all  its  rigors  in  England,  were  two- 
fold : 

1.  The  little  less  than  slavery  of  the  labor- 
ing population.  I  allude  to  the  state  technically 
termed  villeinage.  The  terms  villein,  serf,  or 
slave,  originally  meant  nearly  the  same  thing, 
although,  the  slave  always  differed  from  the 
other  two. 

Some  serfs  or  villeins,  termed  villeins  regard- 
ant, were  annexed  to  certain  lands,  passing  into 
the  dominion  of  heirs  or  purchasers,  whenever 
such  lands  changed  owners.  Others  termed 
villeins  in  gross  were  bought  and  sold  without 
any  reference  to  land.  The  latter  of  these  were 
never  very  numerous,  but  at  the  commencement 
of  the  thirteenth  century,  the  former  are  sup- 
posed to   have    embraced    the    larger   part    of 


20  THE    BRITISH    CONSTITUTION. 

tlie  laboring  agricultural  population  of  Eng- 
land.* 

The  villein  was  subjected  to  the  following; 
1.  His  service  was  uncertain  and  indeterminate, 
depending  upon  the  master.  2.  He  was  liable 
to  Wealing,  imprisonment,  and  every  other  kind 
ot  chastisement.  3.  He  was  incapable  of  any 
property  acquisition.  4.  He  passed  to  each  suc- 
cessive  owner  of  the  land,  like  other  chattels. 
5.  He  might  be  severed  from  the  land,  and  sold 
in  gross  by  a  separate  deed.  0.  This  condition 
descended  from  parent  to  child,  and  thus  became 
inheritable. 

But  from  this  extreme  state  of  degradation, 
where  the  Saxon  ceorls  and  the  Saxon  thralls,  or 
slaves,  were  reduced  to  about  the  same  level,  we 
behold  a  gradual  emancipation  effected  through 
the  wise,  strong,  humane,  liberty-loving  provis- 
ions of  the  common  law  of  England.  A  few  of 
its  provisions  only  can  be  noticed. 

a.  An  illegitimate  child,  born  in  villeinage, 
being  nullius  filius,f  and  having  no  inheritable 
blood  could  not  inherit  the  condition  of  villein- 
age. 

♦Creasy,  86.  tCreasy,  89. 


ANGLO-SAXON    INSTITUTIONS.  21 

h.  A  villein  remaining  unclaimed  for  a  year 
and  a  day  in  any  privileged  town,  was  freed 
from  his  villeinage. 

c.  The  lord  might  at  any  time  disfranchise 
his  villein. 

</.  There  were  many  acts  of  the  lord  from 
which  the  law  itself  would  infer  disfranchise- 
ment whether  designed  or  not.  These  embraced 
all  those  acts  by  which  the  lord  treated  the 
villein  as  a  freeman.  Such  as  :  1.  Vesting  in 
him  the  ownership  of  lands.  2.  Accepting  from 
him  the  feudal  solemnity  of  homage.  3.  By 
entering  into  an  obligation  under  seal  with  him. 
4.   By  pleading  with  him  in  an  ordinary  action. 

The  second  result  which  the  enforcement  of 
this  system  disclosed  was  in  the  securing  more 
order  and  regularity,  and  the  creation  of  a 
stronger  central  power  in  the  monarch.  To  this 
latter  various  things  contributed,  as  :  1.  The  im- 
mense wealth  of  the  crown  independent  of  any 
contributions  from  its  subjects.  2.  The  readi- 
ness with  which  the  Saxon  part  of  the  popula- 
tion ever  served  the  king  against  any  of  the 
rebellious  Norman  barons.  3.  The  great  intel- 
lectual   capacity    and    energy    of    the    Norman 


22  THE   BRITISH   CONSTITUTION. 

kings  down  to  the  time  of  John.  4.  A  change 
made  by  William  in  the  allegiance  of  the  vassals. 
Previously  to  the  conquest  the  vassal  swore 
fealty  absolutely  to  his  baron.*  His  oath  to  the 
sovereign  excepted  his  duty  to  his  liege  lord. 
As  a  result  to  this  he  was  bound  to  follow  the 
latter  in  any  rebellion  against  the  sovereign. 
The  Conqueror  would  sutler  no  divided  alle- 
giance. He  required  the  oath  of  fealty  to  be 
made  to  himself  without  any  reservation  or  ex- 
ception, and  he  forfeited  as  well  the  hinds  of  the 
sub-vassal  as  those  of  the  vassal  himself,  if  the 
tenant  followed  his  liege  lord  in  rebellion  against 
the  king. 

Thus  viewing  England  at  the  commencement 
of  the  twelfth  century,  aside  from  some  peculiar 
laws,  customs  and  institutions  of  both  Saxons 
and  Normans,  we  have  three  great  facts  out  of 
which  to  work  out  the  problem  of  English  con- 
stitutional freedom.  These  were  :  1.  An  en- 
slaved laboring  population,  but  along  with  it, 
the  unceasing  efforts  of  the  common  law.  finally 
successful,  at  emancipation.  2.  A  strong  body 
of  nobles,  bound  together  by  a  sense  of  common 

'Brougham,  1 1 1.  208. 


ANGLO-SAXON    INSTITUTIONS.  23 

> 

danger,  and  constituting  altogether  a  powerful 
aristocracy,  o.  A  strong  central  [tower  center- 
ing in  the  crown  ;  much  stronger  than  anywhere 
else  is  found  coexisting  with  feudal  institutions. 
The  political  power,  at  this  period,  is  all 
lodged  with  the  king  and  the  barons.  There 
was  then,  in  a  political  sense,  no  people  in  En- 
gland. The  power  exercised  by  the  barons,  was 
partly  political  and  partly  proprietary.  The 
latter,  however,  was  very  much  impaired  by  the 
new  provision,  just  noticed,  made  by  the  Con- 
queror, as  to  fealty.  The  prospect  certainly 
then  was  that  the  English  government  would 
settle  into  an  unmitigated  despotism. 


24  THE    BRITISH   CONSTITUTION. 


CHAPTEB  II. 

CHARTERS   OF   RIGHTS. 

We  are  now  ready  to  glance  at  the  second 
general  point  presented  for  consideration,  viz.: 
the  charter  of  rights  successively  wrested  from 
the  king  by  his  principal  barons 

It  has  been  well  remarked  by  Guizot  that 
"liberties  are  nothing  until  they  have  become 
rights,  positive  rights,  formally  recognized  and 
consecrated."  Rights,  even  when  recognized, 
are  nothing  so  long  as  they  are  not  entrenched 
within  guaranties.  And  lastly,  guaranties  are 
nothing  so  long  as  they  are  not  maintained  by 
forces  independent  of  them,  in  the  limit  of  their 
rights.  Convert  liberties  into  rights,  surround 
rights  by  guaranties,  intrust  the  keeping  of  these 
guaranties  to  forces  capable  of  maintaining 
them,  such  are  the  successive  steps  in  the  pro- 
gress towards  a  free  government. 

''This   progress  was  exactly  realized  in  En- 

Guizot,  History  Representative  Government,  302. 


CHARTERS   OF    RIGHTS.  25 

gland.  Liberties  first  converted  themselves  into 
rights  ;  when  rights  were  nearly  recognized, 
guaranties  were  sought  for  them  ;  and  lastly, 
these  guaranties  were  placed  in  the  hands  of 
regular  powers.  In  this  way  a  representative 
system  ot  government  was  formed." 

No  inconsiderable  a  portion  of  the  right-, 
and  guaranties,  and  even  forces  that  maintain 
them,  embraced  in  the  British  constitution,  have 
been  wrung  reluctantly  from  the  monarch  ;  have 
been  wrested,  sometimes,  not  without  violence, 
from  the  proud  prerogatives  which  were  claimed 
to  be  inherited  in  the  kingly  office.  This  com- 
menced even  with  William  the  Conqueror. 

Although  the  fear  of  the  Anglo-Saxons  served 
to  bind  closely  together  the  king  and  his  Nor- 
man barons,  yet  the  former,  constituting  the 
great  body  of  the  English  population,  and  strug- 
gling to  preserve  their  Saxon  laws,  could  not  be 
disregarded  with  impunity.  William  felt  bound 
to  respect  these,  and  in  1071.  gave  a  charter, 
giving  assurance  that  these  laws  should  be  main- 
tained.  But  this  was  a  mere  recognition  of  a 
right  without  even  the  semblance  of  a  guaranty 


-*'<  THE    BRITISH    CONSTITl'TION. 

to  enforce  it.  The  consequence  was,  that  the 
right  recognized  was  often  violated. 

A  charter  was  granted  by  Henry  I,  contain- 
ing a  solemn  promise  to  respect  all  ancient 
rights.  The  promises  were  large  and  liberal, 
hut  they  were  incessantly    violated. 

Stephen,  the  successor  of  Henry  I,  granted 
two  charters  to  his  subjects  ;  the  one  confirming 
the  liberties  granted  by  Henry  I.  and  the  laws 
of  Edward  the  Confessor;  and  the  other  prom- 
ising to  reform  the  abuses  and  exactions  of  his 
sheriffs.* 

Even  the  charter  of  Henry  II.  in  1 154,  ex- 
presses nothing  more  than  a  recognition  of 
rights,  containing  no  new  promise,  and  no  con- 
cession of  guaranties. 

Xo  concession  or  charter  ever  proved  of 
much  avail  until  we  come  to  the  reign  of  John, 
the  period  of  magna  cliarta.  in  1215.  Here,  a 
number  of  things  combined  together  to  produce 
a  result,  one  of  the  most  momentous  anywhere 
recorded. 

".  The  title  of  John  to  the  crown  was  defect- 
ive. Arthur,  the  son  of  an  elder  brother,  being 

•Guizot,  History  Representative  Government,  305. 


CHARTERS    <>F    UK  1 1  IIS.  27 

the  real  heir,  and  who  is  supposed  to  have  been 
murdered  by  John. 

//.  The  licentious  acts  and  cruelties  of  John 
had  rendered  him  an  object  of  hatred,  loathing, 
and  deep  aversion  to  the  English  barons. 

c.  The  loss  of  Normandy  deprived  English 
barons  of  their  Norman  homes,  and  rendered 
them  more  purely  English.  The  Norman  and 
Saxon  hereafter  are  found  amalgamating  togeth- 
er, and  instead  of  mutual  hostility  a  union  is 
gradually  forming  between  them. 

</.  Thei"  was  as  vet  no  standing  armv.  the 
raising  of  forces  still  depending  upon  the  prin- 
ciples embraced  in  the  feudal  system. 

e.  Stephen  de  Langton,  both  cardinal  and 
primate,  was  an  Englishman,  having  English 
sympathies,  and  heartily  united  with  the  En- 
glish barons  in  their  struggle  with  the  crown. 

/.  The  existence  of  the  commons,  the  people, 
began  to  be  an  established  fact  in  England.  The 
barons  were  the  first  to  make  this  discovery,  and 
to  invoke  their  aid  against  the  tyrant.  Besides, 
as  they  demanded  concessions  from  the  king, 
thev  were  also  willing  to  make  like  concessions 


28  THE    BRITISH    CONSTITUTION. 

to  their  own  vassals,  so  that  the  feudal  fetters 
bound  with  far  less  severity. 

(/.  The  character  of  John,  his  dissimulation, 
rashness  and  pusillanimity,  his  treachery  and 
weakness,  all  conspired  to  render  him  just  the 
very  king,  to  all  appearances,  sent  for  the  pur- 
pose of  granting  the  great  charter. 

After  various  negotiations  and  acts  of  hostil- 
ity between  the  king  and  barons,  the  parties 
finally  met  on  the  L9th  June,  121.").  on  the  plain 
of  Kunnvmede.  a  grassy  plain  of  about  one 
hundred  and  sixty  acres,  on  the  south  bank 
of  the  Thames,  between  Staines  and  Windsor. 
Here  was  wrested  from  John,  magna  charta,  the 
great  charter  of  English  rights,  devoted  almost 
exclusively  to  the  settlement  of  the  rights,  and 
confirmation  of  the  privileges  claimed  by  the 
laity. 

This  charter  seems  to  have  been  the  first 
document  establishing  a  distinction  between  the 
greater  and  lesser  barons,*  and  the  higher  and 
lower  clergy,  leading  to  the  fact  of  separation 
between  the  two  houses  of  parliament.  It  also 
determines,  with  great  accuracy,  what  had  been 

*Guizot,  Representative  Government,  314. 


CHARTERS   OF   RIGHTS.  29 

obscure  and  ambiguous  in  the  feudal  laws,  mod- 
ifying and  mollifying,  to  a  great  extent,  their 
operation.  It  fixes  the  amount  of  relief;  it  pro- 
vides that,  with  Certain  trMing  exceptions,  no 
eseuage,  or  extraordinary  aid.  shall  be  imposed 
except  by  the  national  council  of  the  kingdom, 
thus  furnishing  the  germ  of  the  principle  that 
no  tax  shall  be  imposed  without  the  consent  of 
those  who  are  taxed,  or  their  representatives. 

The  barons  by  no  means  limited  their  de- 
mands to  the  obtaining  of  privileges  for  them- 
selves. Almost  all  the  immunities  granted  to 
them,  with  respect  to  the  king,  the  vassals 
obtained  with  respect  to  their  lords. 

Very  important  provisions  were  introduced 
regulating  the  administration  of  justice. 

By  article  thirty-nine,  it  is  provided:  '-'-No 
freeman  shall  be  arrested  or  imprisoned,  or  dis- 
possessed of  his  tenement,  or  outlawed,  or  ex- 
iled, or  in  anywise  proceeded  against ;  we  will 
not  place  or  cause  to  be  placed,  hands  upon  him, 
unless  by  the  legal  judgment  of  his  peers,  or  by 
the  law  of  the  land." 

And  by  article  forty:  "Justice  shall  not  be 
sold,  refused  or  delayed  to  anyone." 


THE    BRITISH    CONSTITUTION. 

It  makes  tin-  king  grant  and  assure  to  the 
city  of  London.  as  well  :is  to  all  the  other  cities, 
boroughs,  towns  and  harbors,  the  possession  of 
their  ancient  customs  and  liberties. 

It  provides  for  holding  the  general  council  of 
Ihe  kingdom  concerning  the  assessment  of  aids, 
as  follows  :  ,v  We  shall  cause  to  he  summoned 
the  archbishops,  bishops,  abbots,  earls,  and  the 
greater  barons  of  the  realm,  singly  by  our 
letters.  And  furthermore  we  shall  cause  to  be 
summoned  generally  by  our  sheriffs  and  bailiffs, 
all  others  who  hold  of  us  in  chief,  for  a  certain 
day.  that  is  to  say.  forty  days  before  their  meet- 
ing at  least,  and  to  a  certain  place  :  and  in  all 
letters  of  such  summons  we  will  declare  the 
cause  of  such  summons. 

It  also  provides  that  all  merchants  shall  have 
full  and  free  liberty  of  entering  England,  of 
leaving  it,  of  remaining  there,  and  of  traveling 
there  by  land  and  by  water;  to  buy  and  to  sell 
without  being  subject  to  any  oppression  accord- 
ing to  the  ancient  and  common  usages. 

The  foregoing  embrace  the  principal  pro- 
visions contained  in  the  great  charter.  They 
are.  thus  far.  nothing  but  promises,  concessions 


CHARTERS   OF    RKSIITS.  31 

of  rights.  The  barons,  however,  had  now  seen 
sufficient  to  be  satisfied  that,  without  adequate 
guaranties,  there  could  be  nothing  to  insure  the 
performance  of  these  promises.  They  accord- 
ingly provided  the  following  as  such  guaranty, 
viz:  the  election  by  them  of  twenty-five  out  of 
their  own  number,  who  should  be  charged  to 
exercise  all  vigilance,  that  the  provisions  of  the 
charter  may  be  carried  into  effect,  their  powers 
to  be  unlimited.  Their  duties  were  the  follow- 
ing: In  case  the  enactments  of  the  charter  were 
violated  by  the  king  in  the  smallest  particular,* 
they  should  denounce  the  abuse,  before  the 
king,  and  demand  that  it  be  instantly  checked. 
If  the  king  fail  to  comply  with  this  demand, 
then  the  barons  were  vested  with  the  right, 
forty  days  after  the  issuing  of  the  summons,  to 
prosecute  the  king,  to  deprive  him  of  his  lands 
and  castles  until  the  abuse  should  be  reformed 
to  their  satisfaction. 

This  was  undoubtedly  as  complete  a  guaranty 
as  the  spirit  of  that  age  required,  or  its  compre- 
hension could  understand.  The  great  detect 
was,  the  want  of  constitutional  forces  to  enforce 

*Guizot,  Representative  Government,  315,  316. 


32  THE    BRITISH   CONSTITUTION. 

its  observance.  The  only  forces  it  provided 
were  a  civil  war,  a  resort  to  physical  force. 
This  w:is  in  harmony  with  the  spirit  of  the  age. 
The  embodiment  of  political  force  in  the  consti- 
tution itself,  and  its  quiet,  peaceful  production 
of  effects  without  a  resort  to  the  calamities  of 
war,  had  not  then  entered  the  conceptions  of 
men.  Bat  even  this  forcible  guaranty  was  of 
greal  value,  as  it  centralized  the  feudal  aristoc- 
racy by  organizing  the  council  of  barons. 

John  afterwards  procured  the  great  charter  to 
be  annulled  by  the  pope.  Innocent  III,  and  the 
barons  excommunicated;  but  Archbishop  Lang- 
ton  refused  to  pronounce  the  sentence.  John 
had  scarcely  got  his  army  on  foot  when  he  was 
called  away  by  death. 

The  evil  of  relying  upon  physical  force,  a 
civil  war.  to  secure  the  observance  of  guaran- 
ties, was  soon  perceived  and  strongly  felt.  Even 
under  the  reign  of  John's  successor,  Henry  III, 
efforts  were  made  for  other  securities  than  force. 
In  the  early  part  of  it,  a  new  charter  was 
granted,  corresponding  mainly  with  that  granted 
by  John,  but  in  it   the   right  of   resistance  by 


CHARTERS   OF    RIGHTS.  33 

armed  force,  in  case  the  king  should  violate  his 
promises,  was  nol  included. 

Repeated  violations  of  the  charter  took  place, 
and  in  order  to  obviate  these  the  expedient  was 
adopted  of  appointing  twelve  knights  in  each 
county,  who  should  inquire  what,  according  to 
ancient  usages,  were  the  rights  of  the  king  and 
the  liberties  of  his  subjects. 

Henry,  on  coining  of  age,  revoked  all  the 
charters  he  had  granted.  This  gave  rise  to 
great  discontents,  and  these  to  new  confirmations 
of  charters,  which  were  again  violated.  Civil 
war  was  now  declared.  Rebellion  occurred,  but 
its  aim  now  was  less  to  obtain  the  renewal  of 
charters  than  to  found  practical  guaranties  of 
recognized  rights.  The  result  was  a  general 
renewal  of  the  charters,  granted  on  the  14th 
March,  1264.  This  was  little  other  than  a 
treaty  of  peace  between  the  king  and  the 
barons. 

The  struggle  continued  with  unabated  force 

under  Edward  I ;  but  neither  party  appealed  to 

arms.     The  day  of  physical  force  had,  for  the 

present  gone  by.     The  contest  was  continued, 

C 


^4  THE    BRITISH    CONSTITUTION. 

hut  its  theatre  was  changed.  So  long  as  mate- 
rial forces  were  looked  to  for  the  enforce- 
ment of  guaranties,  it  is  clear  that  the  higher 
triumph  of  political  forces  peacefully  accomplish- 
ing their  results  through  the  constitution,  can 
never  take  place.  Both  parties  cannot  fail  in 
time  to  grow  weary  of  a  constant  resort  to 
physical  force.  It  impoverishes  and  destroys 
without  leaving  any  equivalent.  The  spirit  it 
engenders  is  only  one  of  hatred  and  hostility. 
its  mission,  therefore,  is  well  and  wisely  lim- 
ited. 

Edward  was  a  conqueror  and  much  engaged 
in  wars.  The  prosecution  of  these  required 
large  sums  of  money,  to  obtain  which  he  did 
not  scruple  to  adopt  violent  and  arbitrary 
measures.  This  resulted  in  complaints  and  dis- 
satisfaction. During  his  absence  on  the  con- 
tinent, his  representative  in  England,  the  prince 
regent,  assembled  a  parliament  in  October, 
1297.  There  a  general  confirmation  of  the 
charters,  with  several  additions,  was  demanded, 
which  the  prince  regent  granted,  and  Edward 
some  time  after  sanctioned.  On  his  return  to 
England,  the  barons  demanded  that,  in  his  own 


CHARTERS    OF    RIGHTS.  35 

person,  lie  should  confirm  them.  After  consid- 
erable evasion,  he  finally  granted  a  new  confirm- 
ation, but  with  a  restrictive  clause  which  really 
annulled  the  grant. 

This  raised  against  him  a  storm  of  public 
opinion  which  threatened  a  resort  to  force. 
Being  severely  pressed,  he  finally  convoked  a 
parliament  m  March,  1300,  at  which  he  con- 
firmed, without  any  restrictions,  all  the  conces- 
sions he  had  already  made,  superadding  to  them 
new  guaranties.  These  latter  principally  con- 
sisted in  the  provision  that  the  charters  should 
be  publicly  read  in  the  county  courts  four  times 
every  year,*  and  that  there  should  be  elected  in 
each  county  court,  from  among  the  knights  of 
the  court,  three  justices,  sworn  to  receive  all 
complaints  of  infractions  of  the  charters,  and 
to  pronounce  penalties  against  the  offenders. 

So  also  in  a  parliament  held  in  1301,  Edward 
again  confirmed  the  charters. 

These  repeated  oaths  of  confirmation  hung 
heavy  upon  the  conscience  of  Edward.  They 
subjected  him  to  a  restraint  which  he  but  illy 
endured.     Towards  the  close  of  the  year  1304. 

•Gulzot,  Representative  Government,  329. 


36  THE    BRITISH    CONSTITUTION. 

he  applied  to  Pope  Clement  V,  for  a  release 
from  these  oaths.  By  a  hull,  dated  January  .">, 
1305,  the  pontiff  declared  that  all  the  promises 
and  concessions  made  by  Edward  were  abro- 
gated, null  and  void. 

Thi>  hull  he,  for  a  long  time,  kept  secret, 
resorting  to  secret  manoeuvres  to  overthrow  the 
charters.  But  it  was  now  too  late.  Almost 
a  century  had  elapsed  since  the  great  charter 
had  been  wrested  from  king  John  On  the  plains 
of  Runnvmede.  Since  that  time  almost  a  con- 
stant warfare  had  been  kept  up  between  the 
king  on  the  one  side,  and  the  barons  and  grow- 
ing power  of  the  commons  on  the  other.  This 
had  been  waged  on  battle-fields  and  in  parlia- 
mentary discussions.  The  eye  of  the  nation 
had  seen  the  one,  and  the  ear  of  the  nation 
drank  in  the  other,  until  a  public  opinion  began 
to  be  formed,  before  which,  in  the  absence  of 
large  standing  armies,  monarchs  themselves 
were  becoming  impotent.  Hence,  the  confirma- 
tion by  Edward  in  1301,  was  the  last  confirmation 
ever  made.  The  right  which  it  proclaimed 
was  definitely  recognized.  From  that  period  the 
charters,  notwithstanding  all  attacks  made  upon 


CHARTERS   OF    RIGHTS.  ?u 

them  have  remained  as  the  immovable  basis  of 
public  right  in  England." 

We  now  close  the  consideration  of  that  part 
of  the  British  constitution  derived  from  charters. 
The  rights  thus  acquired  have  not  come  up  from 
the  people,  and  been  by  them  maintained,  but 
they  have  conic  down  from  the  throne,  through 
the  agency,)  of  (he  barons.  They  have  been 
wrested  by  force,  physical  and  moral,  from  that 
which  at  one  period,  concentrated  all  political 
power,  the  crown.  England  owes  much,  if 
not  all,  her  constitutional  freedom  and  power 
to  the  stern  integrity,  inflexible  purposes, 
and  steady  onward  progress  of  her  baronial 
aristocracy.  And  we  shall  presently  find  that 
the  same  power  so  efficient  in  wresting  rights 
under  the  form  of  concessions  from  the  crown, 
constitutes,  in  the  working  of  the  constitution, 
that  element  of  conservatism,  strength  and 
stability,  that  affords  the  promise  of  perpetual 
endurance. 

*Gulzot,  Representative  Government,  330. 


233592 


3S  THE    BRITISH    CONSTITUTION. 


CHAPTER   III. 

ORIGIN    AND    GROWTH   OF   THE     ENGLISH     PARLIA- 
MENT. 

We  now  proceed  to  the  third  branch  of  in- 
quiry relating  to  England's  constitutional  history, 
viz:  the  origin  and  growth  of  the  English  par- 
liament, including  the  successive  steps  or  stages 
by  which  the  two  houses  attained  their  political 
power,  and  the  principle  of  representation 
became  firmly  established. 

This  assumes  directly  the  contrary  position 
from  that  just  considered.  That  assumed  that 
all  political  power  centered  in  the  crown,  and 
that  all  rights  were  nothing  more  than  con- 
cessions  from  prerogative?.  This,  that  the  peo- 
ple were  the  great  source  of  power,  and  that  all 
authority  legitimately  came  from  them.  The 
first  brings  power  from  above;  the  second  sum- 
mons it  from  below.  The  point  at  which  they 
meet    is    the    central,   focal   one.    around   which 


THE    ENGLISH    PARLIAMENT.  39 

revolves  the  forces  that  together  compose  the 
British  constitution. 

It  is  essential  here  to  understand  the  different 
functions  of  that  general  power  which  governs 
society. 

First,  we  have  the  legislative,  which  imposes 
rules  and  laws  upon  the  mass  of  society,  and 
even  upon  the  executive  power.  It  is  in  its 
legislative  capacity  that  the  sovereignty  of  the 
state  receives  its  highest  development.* 

But  the  law-making  power  can  be  of  little 
effect  without  that  necessary  accompaniment, 
the  law-executing  power.  Next,  therefore, 
appears  the  executive,  and  this  takes  the  daily 
oversight  of  the  general  business  of  society, 
war,  peace,  revenue,  general  execution  of  the 
laws. 

But  this  law-executing  power  must  be  guided 
aright  in  its  action.  Hence  the  necessity  of  the 
judicial,  which  ascertains  the  law,  defines  it, 
puts  upon  it  a  construction,  applies  it  to  the 
many  purposes  of  business  and  life,  and  adjusts 
all  matters  of  private  interest  between  individ- 
uals and  the  state  and  its  citizens. 

•Guizot,  Representative  Government,  288. 


4(1  THE    BRITISH    (ONSTITI  IloN. 

In  addition  to  these  is  the  administrative 
power,  which  is  charged  under  its  own  responsi- 
bility, with  the  duty  of  regulating  matters 
which  cannot  be  anticipated  and  provided  tor  by 
any  general  laws. 

The  centralization  of  these  four  powers,  and 
their  union  in  one  man  creates  a  despotism. 
Their  separation,  and  distribution  in  such  a 
manner  as  that  they  shall  severally  operate  as 
mutual  restraints  and  cheeks  upon  each  other, 
creates  a  free  government.  It  is  in  their  union 
and  their  separate  action  that  we  find  most  of 
the  distinctive  differences  between  the  monarchi- 
cal governments  of  the  continent,  and  the  mixed, 
tree  government  of  great  Britain. 

On  the  continent  centralization  has  destroyed 
all  localization,  absorbed  all  local  powers,  and 
resulted  in  a  more  or  less  strongly  unqualified 
absolutism. 

In  England,  fortunately,  local  powers  have 
never  been  destroyed.  They  have  been  pre- 
served through  a  thousand  vicissitudes.  They 
have  been  harmoniously  developed,  have  regu- 
lated and  defined  their  own  action.  The1  central 
government,   as    we  now  behold    it,    has   been  a 


THE    ENGLISH    PARLIAMENT.  41 

gradual  emanation  from  them.  Its  formation 
lias  had  a  commencement,  a  progress,  a  history, 
all  replete  with  interest  and  instruction. 

The  Saxons,  as  we  have  seen,  had  their  witen- 
agemote,  or  couneil  of  wise  men.  who  were 
advisers  of  the  king.  The  first  Norman  kings 
had  their  council  of  barons,  an  assembly  of 
nobles  who  treated  of  affairs  of  stale  or  assisted 
the  king  in  the  adminstration  of  justice.  The 
legislative  and  judicial  powers  were  united,  and 
belonged  to  this  assembly.  The  ancient  usage 
was  that  the  nobles  should  meet  at  Christmas 
either  for  a  celebration  or  deliberation  concern- 
ing the  affairs  of  the  kingdom.  They  were 
occupied  in  legislation,  ecclesiastical  affair-, 
questions  of  peace  and  war,  imposition  of  taxes, 
or  other  matters  of  government. 

As  to  the  constitution  of  these  assemblies  it 
was  undoubtedly  feudal,  and  composed  of  the 
king's  vassals,  who  owed  him  service  both  at 
court  and  in  war.  But  these  could  not  all  have 
attended,  as  the  vassals  of  William  I  exceeded 
six  hundred  in  number.  There  is  here  no  trace 
of  election  or  representation.  Under  the  first 
Norman  kings  two  forces  composed  the  govern- 


£2  THE    BRITISH   CONSTITUTION. 

iiit'iit:  royalty  and  the  council  of  barons.  The 
history  of  England's  chartered  rights  reveals 
the  Btruggle  between  these  two  forces.  It  was 
during  the  continuance  of  this  struggle  that  the 
commons  commenced  rising  into  importance. 
The  fact  that,  more  than  any  other,  proves  the 
rise  of  the  commons,  is  the  introduction  of 
county  deputies  into  parliament. 

The  first  clear  trace  of  this  is  in  1214,  in  the 
assembly  convoked  by  John  at  Oxford.  Some 
writs  then  issued,  ordered  that  the  followers  of  the 
barons  should  present  themselves  at  Oxford  with- 
out arms,"  and  enjoined  besides  that  the  sheriffs 
should  send  to  Oxford  four  approved  knights  from 
each  county  "in  order  to  consider,  with  as,  the 
affairs  of  our  kingdom."  Here,  for  the  first  time, 
is  representation,  that  is,  the  admission  of  certain 
individuals,  who  should  appear  and  act  in  the 
name  of  all.  The  object  undoubtedly  was  to 
attach  the  knights  to  the  royal  interest  in  the 
contest  with  the  barons.  The  same  struggle  and 
policy  ran  through  the  reign  of  Henry  III. 

Forty  years  later,  in  1251,  in  convoking  an 
extraordinary  parliament  in  London,  Henry  III 

*Guizot,  History  Representative  Government,  358. 


THE    ENGLISH    PARLIAMENT.  43 

addressed  a  writ  to  the  sheriffs  enjoining:  them 
to  cause  two  knights  to  be  eleeted  in  the  county 
coints  '•  in  the  stead  of  each  and  all  of*  then!,"* 
to  deliberate  on  the  aid  to  be  granted  to  the 
king.  Here  is  real  representation.  It  is  the 
entrance  of  the  commons  into  parliament  in  the 
persons  of  the  two  knights  who  represent 
them. 

Ten  years  later  still,  in  12<>4,  a  parliament 
was  convoked  to  consist  of  peers,  county  depu- 
ties, aiid  also  borough  deputies,  thus  giving  it 
the  extent  it  has  since  preserved. 

The  difference  between  county  and  town  or 
borough  deputies  was.  that  the  former  came  in 
right  of  being  the  immediate  vassals  of  the 
king,  while  the  latter  came  not  upon  any  prin- 
ciple of  right,  but  depended  entirely  upon 
isolated  facts  bearing  no  relation  to  one  another. 
No  general  principle  was  invoked  applying  to 
all  towns  and  boroughs.  The  grant  of  repre- 
sentatives to  one  did  not  involve  any  similar 
concession  to  another, f  or  others.  Here,  thus 
early,  we  discern  the  radical  vice  in  the  electoral 
system  of  England,  which  gave  rise  to  the   rot- 

•Guizot,  History  Representative  Government,  366.        fldem,  355. 


44  THE    BRITISH    CONSTITUTION. 

ten  borough  system,  so  much  complained  of  un- 
til the  passage  of  the  reform  bill  in  1821.  It 
arose  from  the  privilege  first  conferred  upon 
boroughs  or  towns,  which  finally  ripened  into 
rights.  The  borough  changed  sometimes,  al- 
most totally  disappeared  in  the  progress  of  time. 
But  the  right  to  send  representatives  still  re- 
mained, and  hence,  in  some  eases,  where  the 
entire  borough  was  owned  by  one  individual, 
he  alone  was  entitled  to  send  the  representative. 
At  the  same  time  other  places  had  grown  up 
into  importance  where  no  such  right  existed. 
Thus  the  representation  of  boroughs  grew  to 
l>e,  in  the  extremes!  degree,  unequal. 

The  regular  parliaments  embodying  the 
principle  of  representation,  having  found  their 
origin  in  the  troublous  times  of  John  and 
Henry  II.  became  more  thoroughly  formed  and 
consolidated  during  the  reign  of  Edward  I. 

Two  kinds  of  parliament  appear  during  this 
reign  ;  the  one  composed  only  of  the  higher 
barons,  the  other  of  deputies  from  counties  and 
boroughs.  The  attributes  of  these  wire  almost 
identical,  the  same  powers  being  often  exercised 
by  each.     The  first  mentioned  met  much  more 


THE    ENGLISH    PARLIAMENT.  45 

frequently,  the  hist  only  upon  extraordinary 
occasions,  when  some  general  impost  was  to  be 
obtained  from  the  freeholders. 

In  1295,  a  complete  parliament  was  convoke* I 
at  Westminster,  the  writs  being  addressed  to 
the  bishops  and  archbishops,  ordering  them  to 
cause  a  certain  number  of  deputies  for  the  chap- 
ters and  for  the  clergy  to  be  nominated."  also 
summoning  forty-nine  earls  or  barons  individ- 
ually, and  also  enjoining  the  sheriffs  to  cause 
two  knights  to  be  elected  for  each  county,  ami 
two  deputies  for  each  borough  in  the  county. 

This  parliament,  at  its  meeting,  was  divided 
into  two  houses,  one  containing  lay  representa- 
tives, the  other  ecclesiastical  ;  their  place  of 
meeting  and  votes  being  distinct. 

In  the  beginning  of  the  fourteenth  century 
the  parliament  already  rested  on  a  fixed  basis. 
It  was  composed 

a.  Of  earls  or  lay  barons  which  the  king 
convened  individually.  Along  with  these  were 
the  principal  functionaries  of  the  king,  such  as 
the  judges  and  members  of  the  privy  council. 

h.  Of  archbishops,  bishops,  abbots,   and   pri- 

*Gulzot,  Representative  Government,  ?<Tl. 


4i>  THE    BRITISH    CONSTITUTION. 

ors,  also  summoned  individually.*  In  regard 
to  both  these,  and  the  earls  or  barons,  no  law  or 
precedent  defined  who  should  be  summoned. 
The  king  acted  arbitrarily  in  this  respect,  sum- 
moning whoever  he  pleased.  It  had  no*  vet 
settled  into  an  hereditary  right. 

r.  Of  deputies,  from  the  knights  or  freehold- 
ers of  the  counties.  Here  we  meet  with  repre- 
sentation. The  convocation  of  these  deputies 
was  more  certain  as  it  resulted  from  the  right 
of  every  immediate  vassal  to  a  seat  in  the 
general  assembly  ;  and  regular,  because  the 
county  courts,  whence  they  originated,  were. 
all  over  England,  composed  of  the  same  ele- 
ments, and  possessed  of  the  same  interests,  con- 
stituting a  uniform  and  identical  whole,  each  br- 
ing equally  entitled  to  the  privilege  of  repre- 
sentation. 

d.  Of  deputies  from  cities,  towns  and  bor- 
oughs. There  was  here  no  certainty  or  regular- 
ity. The  admission  of  deputies  from  one  city 
or  town  did  not  involve  their  admission  from 
another,  or  even  from  the  same  at  a  future  time. 
The  number  of  town  and  borough  deputies  was 

*  Guizot.  History  of  Representative  Government,  374. 


THE    ENGLISH    PARLIAMENT.  47 

not  fixed,  but  determined  arbitrarily  by  the 
king.  But  the  convocation  of  two  for  each 
county,  and  as  many  for  each  borough,  finally 
passed  into  a  rule.  Neither  the  convocation  of 
county  nor  borough  deputies  was  originally  a 
public  necessity,  but  it  became  such  when  con- 
sent in  all  matters  of  impost  was  recognized  as 
a  right. 

Who  were  the  electors  in  the  counties  and 
boroughs,  and  what  was  the  manner  of  election? 
In  regard  to  the  former,  two  facts  present  them- 
selves.* 

a.  The  direct  vassals  of  the  king  who,  on 
account  of  their  inferior  importance,  ceased  to 
attend  the  general  assembly  ;  naturally  made  it 
their  business  to  attend  the  county  courts. 

b.  The  great  body  of  freeholders  also  attend- 
ed the  same  courts,  and  the  one  became  merged 
in  the  other,  both  exercising  the  same  rights. 
This  general  assembly  of  freeholders,  having 
local  as  well  as  general  matters  to  attend  to,  fell 
into  the  habit  of  appointing  some  one  or  more 
of  its  members,  to  attend  to  their  local  or 
general  business. 

*  Guizot,  Representative  Government,  379. 


1:8  THE   BRITISH   CONSTITUTION. 

The  boroughs  have  a  different  history.  It 
was  not  there  the  freeholder  but  the  citizen, 
who  controlled  its  operations.  It  was  the  citi- 
zens who  managed  the  affairs  of  the  borough  in 
virtue  of  their  charter,  upon  whom  devolved  the 
righl  of  naming  its  representatives. 

The  electoral  rights,  were  therefore,  entirely 
different  in  the  counties  and  boroughs.  In  the 
former  being  regular  they  have  adapted  them- 
selves to  all  the  vicissitudes  of  property,  and 
have  become  proportionally  extended,  while  in 
the  boroughs,  until  the  late  parliamentary  re- 
form, they  have  remained  unaltered.  The 
mode  of  election  was  by  open  voting,  which 
became  perpetuated. 

The  true  principle  of  representation  in  re- 
lation to  counties  and  boroughs  was  originally 
carried  into  parliament.*  The  representatives 
of  each  entering  there  remained  distinct.  Those 
of  the  boroughs  never  deliberated  with  those  of 
the  counties:  each  treated  with  the  government 
as  to  those  affairs  alone  which  interested  itself  , 
consenting  on  its  own  account  to  the  imposition 
of  taxes  on  its  own  constituency. 

•Guizot.  Representative  GoverWmetit,  393, 


THE    ENGLISH    PARLIAMENT.  4i> 

In  process  of  time,  however,  this  became 
changed,  the  county  and  borough  members  he- 
coining  united  into  one  single  assembly.""  To- 
wards the  middle  of  the  fourteenth  century  the 
parliament  was  divided  into  two  houses,  one 
the  house  of  lords,  in  which  the  great  barons 
were  individually  summoned  ;  the  other  that  of 
the  commons,  comprising  all  the  elected  repre- 
sentatives of  counties  and  boroughs. 

This  was  an  important  result,  and  one  that 
has  fixed  the  destiny  of  England.  Had  the  rep- 
resentatives of  the  counties  and  boroughs  con- 
tinued to  remain  separate  in  their  meeting,  in 
their  interests,  and  in  their  action,  the  power  of 
the  commons  would  have  been  divided,  and 
thus  necessarily  weakened,  and  by  creating 
divisions  between  the  two,  the  king,  in  con- 
junction with  the  lords,  might  easily  have  over- 
come them.  But  the  representatives  of  the 
counties  and  boroughs  having  the  same  origin  , 
appearing  in  parliament  by  virtue  of  the  same 
title,  election  ;  each  alike  in  having  in  charge 
certain  local  interests,  which  were  often  identi- 
cal ;f  by  forming  with  each  other  a  union  so  inti- 

*Guizot,  Representative  Government,  419.  tldem,  422. 

D  3 


50  THE    BRITISH    CONSTITUTION. 

mate  as  to  form  constituent  parts  of  the  same 
assembly,  acquired  for  themselves  such  com- 
bined and  concentrated  power  as  to  render 
them  a  co-ordinate  branch  of  the  English  govern- 
ment,  and  vest  in  them  the  political  supremacy 
which  their  real  importance  demanded.  Thus, 
while  the  great  barons,  composing  the  house 
of  lords,  constituted  the  chief  council  of  the 
king,  and  engaged  in  public  affairs  in  a  perma- 
nent manner  by  reason  of  their  personal  im- 
portance, the  representatives  of  the  counties 
and  boroughs,  clothed  with  a  power  not  per- 
sonal but  representative,  interfering  in  public 
affairs  onl}r  from  time  to  time  and  in  certain 
particular  cases,  were  enabled  by  their  combi- 
nation and  united  action,  to  exert  an  influence, 
little  less  than  controlling,  in  the  administration 
of  the  government. 

The  great  lever  through  which  the  commons 
rose  into  power,  and  ultimately  compelled  that 
power  to  be  recognized  by  the  crown,  Avas  in 
the  grant  of  supplies.  When  once  the  point 
was  conceded,  that  the  only  road  to  the  pockets 
of  the  people  lay  through  the  house  of  commons; 
that  their  vote  alone  could  replenish  an  exhaust- 


THE    ENGLISH    PARLIAMENT.  51 

ed  treasury ',  they  acquired  a  constitutional  im- 
portance which  cannot  well  be  overestimated. 
This  right,  although  early  conceded,  yet  they 
were  long  in  fully  acquiring.  But  in  the  early 
part  of  the  fourteenth  century  we  find  them 
possessed  of  so  much  strength  in  the  exercise  of 
it  as  to  venture  upon  the  annexation  of  condi- 
tions. In  1309  when  granting  to  Edward  II  a 
twentieth  part  of  their  movable  goods,  they  ex- 
pressly attached  the  condition  that  "the  king 
should  take  into  consideration,  and  should 
grant  them  the  redress  of  certain  grievances  of 
which  they  had  to  complain/'' 

In  1322  a  statute  Avas  passed  declaring  that 
"  thenceforward  all  laws  respecting  the  estate 
of  the  crown,  or  of  the  realm  and  people,  must 
be  treated,  accorded  and  established  in  parlia- 
ment by  the  king,*  by  and  Avith  the  assent  of 
the  prelates,  earls,  barons,  commonalty  of  the 
realm."  This  amounts,  thus  early,  to  a  clear 
recognition  of  the  commonalty  as  a  co-ordinate 
branch  of  the  government,  and  of  its  right  to 
interfere  in  legislation,  and  all  great  public 
affairs. 

'Gutzot,  Representative  Government,  461. 


52  THE    BRITISH    CONSTITUTION. 

In  perfect  accordance  with  the  principle  thus 
early  embraced  in  this  statute,  we  find  the 
action  of  the  government.  In  1328,  a  treaty  of 
peace  was  made  with  Scotland,  which  was  con- 
cluded with  the  consent  of  the  parliament.""  In 
1331,  Edward  III  consulted  the  parliament  on 
the  question  of  peace  or  war  with  France.  In 
1336,  it  urged  the  king  to  declare  war  against 
Scotland.  In  1341,  the  parliament  pressed  Ed- 
ward III  to  continue  the  war  in  France,  and 
furnished  him  with  large  subsidies.  In  134:!. 
the  parliament  was  convoked  to  examine  and 
advise  what  had  best  be  done  in  the  existing 
state  of  affairs.  In  1361,  peace  with  France 
having  been  concluded,  the  parliament  was  con- 
voked, and  the  treaty  was  submitted  to  its  in- 
spection, and  received  its  approval.  In  1368, 
the  negotiations  with  Scotland  were  submitted 
to  the  consideration  of  the  parliament.  In 
1369,  the  king  consulted  the  parliament  as  to 
whether  he  should  recommence  the  war  with 
France,  because  of  the  non-observance  of  the 
conditions  of  the  last  treaty;  and  the  parlia- 
ment advised  him  to  do  so,  and  voted  subsidies. 

•Creasy,  218,  219. 


THE    ENGLISH    PARLIAMENT.  53 

These  facts  are  all  valuable  as  showing  the 
constant  practice  of  intervention  by  the  com- 
mons in  important  national  affairs  at  this  early 
period,  and  during  the  strong  reign  of  Edward 
III. 

Another  fact  which  it  becomes  important 
here  to  notice  is  the  right  of  petition,  its 
essence,  origin  and  history.  Its  essence  is  a 
right  to  demand  the  reparation  of  an  injury,  or 
to  express  a  desire.  In  the  fourteenth  century 
all  petitions  were  addressed  to  the  king.  He 
governed,  and  possessed  both  the  right  and  the 
power  to  redress  grievances.  But  he  governed 
in  his  council,  the  most  eminent  and  extensive 
of  which  was  the  parliament.  The  regular 
practice  was,  that  the  king,  by  officers  specially 
appointed  for  that  purpose,  received  and  ex- 
amined all  petitions,  and  afterwards  called  the 
attention  of  both  houses  to  those  with  whose 
prayers  he  could  not  comply  without  their  sanc- 
tion. The  interference  of  the  houses  of  parlia- 
ment was,  therefore,  only  in  certain  cases,  and 
then  as  a  necessary  council.  All  propositions 
in  either  house  took  the  form  of  petitions  to  the 
king  for  his  order,  assent,  or  edict,  which  thus 


.r>4-  THE    BRITISH    CONSTITUTION. 

had  the  force  of  law;  and  at  the  close  of  each 
session,  the  clerks  in  chancery  reduced  the 
whole  to  a  form  of  statutes.  Thus,  in  its  origin, 
the  houses  of  parliament,  and  more  especially 
that  of  the  commons,  were  themselves  the  great 
public  petitioner. 

When  the  house  of  commons  had  achieved 
the  position  of  a  co-ordinate  branch  of  the  gov- 
ernment, and  acquired  the  possession  of  power 
as  such,  the  right  of  petition  to  the  two  houses 
of  parliament  became  regarded  as  a  natural  con- 
sequence of  the  right  of  petition  to  the  king. 

The  importance  of  this  consists  principally 
in  the  creation  of  new  avenues  to  the  introduc- 
tion of  business.  Formerly  the  government 
brought  forward  the  questions  which  gave  rise 
to  the  discussions  in  the  two  houses.  Now  the 
right  of  petition  introduces  a  new  initiative,  and 
the  humblest  citizen,  who  forms  no  part  of  the 
public  power,  can,  nevertheless,  through  the  ex- 
ercise of  that  right,  introduce  a  subject  of  dis- 
cussion, and  thus  set  that  power  in  motion. 

It  was  during  the  lon<r  half  century  reign  of 
Edward  III  that  the  parliament  acquired  much 
of  its  present  constitution.      We  have    already 


THE    ENGLISH    PARLIAMENT.  55 

seen  the  numerous  instances  of  its  intervention 
in  the  affairs  of  government.  Another  fact 
characterizing  this  reign  is  the  great  regularity 
with  which  the  parliament  was  convoked.  Dur- 
ing his  reign  there  were  forty-eight  sessions, 
nearly  one  session  in  each  year.  It  passed  acts 
providing  for  the  regularity  of  its  own  convo- 
cation, and  also  to  insure  the  security  of  its  de- 
liberations. 

Again,  it  is  during  this  reign  that  we  hear 
for  the  first  time  of  the  parliament  being  di- 
vided into  two  houses  ;*  and  quite  at  the  end  of 
the  same  reign,  in  1377,  the  parliamentary  rolls 
first  make  mention  of  the  speaker  of  the  house 
of  commons. 

Another  important  fact  to  be  noticed  during 
this  reign  is  the  voting  of  taxes.  Many  in- 
stances occur  of  the  imposition  of  arbitrary  and 
illegal  imposts,  but  the  perseverance  of  the 
commons  in  the  maintenance  of  their  exclusive 
right  of  taxation  was  steady  and  continuous. 
They,  in  two  cases,  even  extended  it  beyond  the 
concession  of  subsidies.  In  1340,  the  parlia- 
ment  appointed  certain  persons  to  receive  the 

*Guizot,  Representative  Government,  478. 


56  THE    BRITISH    CONSTITUTION. 

accounts  of  the  tax-collectors,  and  required 
them  to  give  security  for  the  payment  of  all 
they  received.  This  is  interesting  as  containing 
the  germ  of  a  right  subsequently  asserted  and 
maintained,  of  demanding  an  account  of  the 
national  expenditures.  The  first  step  in  that 
direction  was  taken  by  making  sure  of  the  fideli- 
ty of  the  receipts.  In  1354.  the  parliament,  in 
granting  a  tax  on  wool,  annexed  to  it  a  condi- 
tion that  the  money  so  raised  should  be  devoted 
to  the  war  then  carried  on.  This  presents  us 
with  the  rudiment  of  another  parliamentary 
right,  that  of  the  appropriation  of  the  public 
funds.  The  parliament  appear  during  this 
reign  to  have  participated  generally  in  legisla- 
tion. This  is  evident  from  the  form  of  the 
statutes  passed. 

Besides  taking  an  active  part  in  things  re- 
lating to  wars  and  foreign  affairs,  the  interfer- 
ence of  parliament  in  the  internal  administration 
of  the  country  was  no  less  strongly  marked. 
In  1342,  the  commons,  profiting  by  an  exhaust- 
ed treasury,  presented  to  the  king  two  petitions. 

"  That  certain  by  commission  may  hear  the 
account     of    those    who    have    received    wools, 


THE    ENGLISH    PARLIAMENT.  57 

moneys,  or  other  aid  for  the  king,  and  that  the 
same  may  be  enrolled  in  the  chancery."  This, 
with  some  slight  modification,  was  granted. 

*'  That  the  chancellor  and  other  officers  of 
state  may  be  chosen  in  open  parliament,  and  at 
the  same  time  be  openly  sworn  to  observe  the 
laws  of  the  land  and  magna  charta."  This  also 
was  granted  with  some  modification.  These, 
with  their  modifications,  were  immediately  con- 
verted into  statutes.  Here  again  we  find  the 
rudiments  of  ministerial  responsibility  to  parlia- 
ment ;  the  claim  to  exercise  some  influence  over 
the  choice  of  ministers,  and  also  to  hold  them 
responsible  for  their  conduct, 

Thus  the  long  reign  of  Edward  III  saw  the 
English  parliament  established  on  a  permanent 
basis.  It  has  undergone  but  little  real  alteration 
since,  only  its  functions  have  become  better 
defined. 

The  power  of  the  commons  also  increased 
under  Richard  II,  so  that  at  the  accession  of 
Henry  IV,  it  might  be  said  of  the  three  follow- 
ing points,  that  the  first  was  decided  in  their 
favor  ;  the  second  admitted  in  principle,  and  the 


58  THE    BRITISH    CONSTITUTION. 

third  confirmed  by  frequent  exercise.  These 
were  : 

a.  That  they  alone  could  grant  taxes. 

h.  That  all  laws  enacted  must  be  with  their 
consent. 

C.  That  the  administration  of  government 
was  subject  to  their  inspection  and  control. 

During:  the  domination  of  the  house  of  Lan- 
caster,  the  parliament  also  made  some  progress. 
The  want  of  a  clear  title  in  the  princes  of  that 
house  probably  exerted  an  influence  on  the  ex- 
tent of  their  prerogative  claims.  The  parlia- 
ment exercised  with  much  opposition  :  * 

a.  The  voting  of  taxes. 

b.  The  appropriation  of  the  subsidies. 

c.  The  investigation  of  the  public  accounts. 

d.  Intervention  in  the  legislature. 

e.  Impeachment  of  the  great  officers  of  the 
crown. 

Two  additional  rights  were  also  claimed,  and 
quite  a  progress  made  towards  their  complete 
recognition  under  the  Lancastrian  princes. 
These   were : 

a.  Liberty  of  speech  to  the  members. 

*Guizot,  Representative  Government,  510. 


THE    ENGLISH    PARLIAMENT.  59 

h.  The  inviolability  of  the  members,  their 
freedom  from  arrest. 

In  1407,  in  a  debate  as  to  which  house  should 
have  the  exclusive  right  to  introduce  bills  for 
the  raising  of  taxes,  it  was  finalty  settled  :  * 

a.  That  such  right  should  belong  exclusively 
to  the  commons. 

h.  That  it  was  the  right  of  both  houses  that 
the  king  should  take  no  cognizance  of  the  sub- 
ject of  their  deliberations  until  they  had  come  to 
a  decision  upon  it,  and  could  lay  it  before  him  as 
the  desire  of  the  lords  and  commons  in  parlia- 
ment assembled. 

It  was  at  this  epoch  that  the  lodgment  of  the 
ultimate  judicial  power  was  settled.  That  power 
originally  resided  in  the  entire  parliament.  At 
the  suggestion  of  the  commons  in  1399,  it  was 
declared  to  belong  exclusively  to  the  house  of 
lords. 

During  the  reign  of  Henry  VI,  an  act  was 
passed  limiting  the  right  of  franchise,  f  and 
enacting  that  for  the  future,  knights  of  the  shire 
shall  be  chosen  by  people  dwelling  and  resident 
in  the  counties,  whereof  every  one  of  them  shall 

*Guizot,  Representative  Government,  514.  tCreasy,  231. 


60  THE   BBITISH   CONSTITUTION. 

have  free  land  or  tenement  to  the  value  of  forty 
shillings,  by  the  year  at  least,  above  all  charges. 
Two  years  later  was  passed  an  act  requiring  the 
voter's  freehold  to  be  situate  in  the  county  for 
which  he  votes,  and  these  contain  essentially  the 
basis  for  voting  which  has  ever  since  been  acted 
upon.  During  this  long  reign  of  Henry  VI  the 
power  of  parliament  advanced,  and  almost  ab- 
sorbed the  entire  government. 

During  the  century  that  occurred  between 
Richard  II  and  Richard  III.  there  was  a  great 
diminution  of  England's  feudal  aristocracy. 
This  was  the  era  of  sanguinary  wars  between 
the  partisans  of  the  houses  of  York  and  Lancas- 
ter ;  between  the  white  and  red  roses.  Many  of 
the  great  barons  of  England  fell  on  the  battle- 
field, and  others  were  stripped  of  a  great  part 
or  the  whole,  of  their  resources.  Thus  that 
sturdy  baronial  power  that  wrested  magna 
charta  from  king  John,  no  longer  existed.  It 
was  broken  down,  and  royalty  had  little  to  fear 
of  opposition  from  that  quarter. 

The  commons,  it  is  true,  had  acquired  many 
constitutional  rights  and  privileges  of  great 
value.     But  thev  also  had  been  wasted  by  civil 


THE    ENGLISH    PARLIAMENT.  (>1 

war;  and  besides,  as  against  (lie  crown,  they 
were  accustomed  to  follow  the  lead  of  the 
barons,  and  were  not,  therefore,  in  a  condition 
to  take  their  place  in  a  struggle  with  royalty. 

These  were  the  circumstances  under  which 
the  house  of  Tudor,  in  the  person  of  Henry  VII, 
acquired  the  crown  of  1485.  With  an  aristoc- 
racy so  depressed,  and  well  near  annihilated, 
and  with  commons  unaccustomed  to  take  the 
lead  in  contests  with  the  crown,  and  also 
laboring  under  great  depression,  we  may  nat- 
urally expect  to  see  royalty  again  in  the  ascend- 
ant. We  are  not  disappointed.  The  Tudors 
reigned  with  more  absolute  authority  than  their 
predecessors.  Their  better  title  to  the  crown, 
together  with  the  circumstances  just  alluded  to, 
enabled  them  to  do  this. 

We  find,  therefore,  Henry  VIII,  the  success- 
or of  Henry  VII,  performing  many  acts  which 
mark  the  worst  of  tyrants,  and  during  his  reign 
some  parliamentary  acts  were  passed  of  a  gen- 
eral character  which  appear  to  be  wide  devia- 
tions from  any  previous  action.  Of  these  we 
have : 

a.  An  act  passed  in  1529.  releasing  the  king 


62  THE    BRITISH    CONSTITUTION. 

from  all  debts  he  had  contracted  six  years  be- 
fore, although  his  securities  had  in  many  cases 
passed  into  the  hands  of  third  persons  who  had 
purchased  them  for  valuable  considerations.* 

1).  That  empowering  the  king,  on  attaining 
the  age  of  twenty-four  years,  to  repeal  all  acts  of 
parliament  made  while  he  was  under  that  age. 

c.  That  declaring  the  proclamations  of  the 
king  in  council,  if  made  under  pain  of  fine  and 
imprisonment,  to  have  the  force  of  statutes,  pro- 
vided they  affected  no  one's  property  or  life,  and 
violated  no  existing  law.  and  authorizing  the 
king  by  proclamation  to  make  any  opinion 
heretical,  and  annexing  death  as  the  penalty  of 
holding  them. 

These  were  each  one,  acts  which  disgraced 
the  English  parliament,  and  indicated  the  dispo- 
sition to  lay  the  liberties  of  the  English  nation 
at  the  foot  of  the  throne.  And  what  was  worse, 
the  oppression  of  the  Tudors.  although  it  was  in 
fact  less  severe  than  that  of  many  of  the  Plan- 
tagenets,  was  nevertheless  exercised  upon  sys- 
tem.  Under  them,  royalty  laid  claim  to  a 
primitive  independent  sovereignty.    The  powers 

'Brougham,  in,  254. 


THE    ENGLISH    PARLIAMENT.  63 

of  the  prerogative  were  asserted  as  matter  of 
right  to  have  a  legal  supremacy.  Under  its 
fearful  shadow,  royalty  declared  itself  absolute 
and  superior  to  all  laws. 

What  this  might  have  led  to  a  century  earlier 
it  might  be  difficult  to  say,  but  the  sixteenth 
century  broke  upon  England  and  Europe  with  a 
new  light.  The  spirit  of  industry  was  abroad. 
It  penetrated  every  department.  Agriculture, 
the  mechanic  arts,  manufactures,  commerce,  with 
all  their  stirring  activities,  pervaded  the  hearts 
of  men.  To  carry  all  these  out  required  the  ex- 
ercise of  bold,  daring  and  free  minds.  The 
habits  of  the  age,  therefore,  were  all  in  direct 
hostility  to  the  exorbitant  claims  of  preroga- 
tive. 

The  result  of  this  industrial  activity  was  to 
accumulate  wealth.  Property  lost  its  fixedness. 
It  really  changed  hands,  even  baronial  property 
could  not  stand  against  the  spirit  of  the  age. 
Landed  property  became  divided,  and  between 
division  and  transfer  the  old  feudal  nobility 
wasted  away.  Persons  who  had  acquired  prop- 
erty by  trade  began  to  rise  to  distinction.  At 
the  beginning  of  the  seventeenth  century  the 


<'4  THE    BRITISH    CONSTITUTION. 

high  nobility,  composing  the  house  of  lords,  did 
nol  equal  in  wealth  the  house  of  commons.* 

There  was  something  more  than  this  new 
spirit  and  change  of  property,  accompanied  by 
change  of  circumstances.  There  was  inaugurat- 
ed a  new  march  of  mind.  The  mind  claimed  its 
prerogative  as  well  as  the  king.  Thought  was 
free,  hold  and  searching  in  its  character.  The 
principles  of  the  Puritans  were  taking  root  ii 
the  soil  of  England.  Political  liberty  could  not 
long  be  divorced  from  those  who  were  willing  to 
sacrifice  all  for  liberty  of  conscience. 

Again,  we  are  to  consider  that  under  the 
reign  of  the  Tudors  there  were  numerous  con- 
cessions to  the  importance  of  parliament.  This 
body  under  the  Plantagenets  had  been  a  means 
of  resistance,  a  guaranty  of  private  rights,  but 
under  the  Tudors  it  was  an  instrument  of  gov. 
eminent,  of  general  policy.  While,  therefore, 
as  in  the  very  acts  we  have  cited,  it  was  the  tool 
of  royalty,  yet  even  by  that  means  its  impor- 
tance became  greatly  increased. 

The  reign  of  the  Tudors  lasted  a  little  over 
a  century,  and  ended  with  that  of  Elizabeth, 

'Guizot,  303. 


THE    ENGLISH    PARLIAMENT.  65 

about  the  close  of  the  sixteenth  century.  At 
this  period  the  free  institutions  of  England  may 
be  said  to  consist  : 

a  .   Of  maxims,  principles  of  liberty,  acknowl- 
edged in  written  documents.* 

h.  Of  precedents,  examples  of  liberty,  which 
were  scattered  over  their  previous  history. 

c.  Of  particular  local  institutions,  such  as 
trial  by  jury,  right  of  holding  public  meetings, 
of  bearing  arms,  etc. 

d.  Of  the  parliament,  now  more  necessary  to 
the  kings  than  ever,  as  their  independent  reve- 
nues, crown  domains,  and  feudal  rights,  having 
disappeared,  they  had  become  dependent  on 
their  parliaments  for  their  household  expenses. 

The  house  of  Stuart  succeeded  to  the  crown 
in  the  person  of  James  I,  about  the  commence- 
ment of  the  seventeenth  century.  And  then 
began  the  real  contest  between  the  crown  and 
the  parliament,  which  ended  in  the  triumph  of 
the  latter.  The  mutterings  of  the  tempest  were 
heard  during  the  reign  of  James,  but  it  was 
rather  a  discussion  of  principles.  He  claimed 
absolute   power  as  a  birthright.     His   conduct 

•Giiizot,  305. 

E  3* 


fif>  mi:    BRITISH    CONSTITUTION. 

was  tickle  weak  and  wavering,  while  the  com- 
mons were  firm  and  steady. 

Hut  under  the  second  Stuart,  Charles  I,  came 
the  decisive  conflict  between  the  commons  and 
the  king,  between  tree  inquiry  and  pure  mon- 
archy. In  the  progress  of  the  revolution  three 
parties  were  very  clearly  developed.  These 
were  :  - 

a.  The  pure  monarchy  party,  whose  princi- 
ples were  entirely  monarchical,  but  who  advo- 
cated legal  reform. 

h.  The  political  revolutionary  party,  who 
deemed  the  ancient  guaranties  insufficient,  and 
sought  to  place  the  preponderence  of  power  in 
the  house  of  commons. 

c.  The  republican  party,  who  went  for  a  rad- 
ical change  in  the  government,  who  sought  to 
overthrow  the  old  forms,  and  establish  new 
ones  ;  who  wished  to  extend  the  power  of  the 
two  houses,  particularly  of  the  commons,  by 
ofivinsj  to  it  the  nomination  of  the  ^reat  officers 
of  state,  and  the  supreme  direction  of  affairs  in 
general.  Of  these  three,  as  is  usual  in  revolu- 
tions, the  last,  which- was  the  most  radical,  and 

X.ilizot.  30S-9. 


THE    ENGLISH    PARLIAMENT.  67 

animated  with  the  most  enthusiasm,  was  in  the 
end  triumphant. 

The  first  act  of  warfare  on  the  part  of 
Charles  was  the  imprisonment  of  members  of 
parliament  for  words  spoken  in  debate.*  But 
tln»  house  compelled  him  to  release  them  by  re- 
fusing to  proceed  to  business  until  their  release. 
Next  he  dissolved  the  parliament,  but  this  only 
led  to  the  election  of  another  still  more  hostile. 
Another  dissolution  led  to  a  third  parliament, 
and  it  was  from  this  that  the  famous  petition  of 
right  proceeded,  which  constitutes  one  of  the 
pillars  upon  which  reposes  the  English  constitu- 
tion. By  this,  the  parliament  compelled  the 
king  to  declare  illegal  the  requisition  of  loans 
without  parliamentary  sanction,  or  the  billeting 
of  soldiers  upon  subjects,  or  commitment  with- 
out legal  process,  or  procedure  by  martial  law. 
But  when,  in  addition,  they  required  him  to 
give  up  the  right  of  levying  tonnage  and  pound- 
age, he  again  dissolved  the  parliament  and  im- 
prisoned the  opposition  leaders. 

But  to  reign  without  a  parliament  was  impos- 
sible, and  another  was  summoned.     This  turned 

*Brougham,  in,  273. 


68  THK    BRITISH    CONSTITUTION 

out  1o  be  what   is  termed  the  long  parliament, 

which  survived  the  king.  This  parliament 
passed  a  l>ill  to  secure  the  calling  of  parliaments 
every  three  years;  prohibited  their  dissolution 
by  the  king  until  after  a  session  of  fifty  days; 
declared  illegal  all  levies  of  customs  and  imposts 
without  consent  of  parliament ;  and  forever 
abolished  the  star  chamber  and  high  commission 
courts,  depriving  the  privy  council  of  all  juris- 
diction in  criminal  matters.  They  also  passed 
an  act  to  prevent  a  dissolution  without  their  own 
consent,  which,  of  itself,  changed  the  entire 
constitution. 

This  parliament  continued  its  session  for 
eighteen  years.  Under  its  rule,  war  was  waged 
against  the  king,  who  was  ultimately  taken, 
tried  and  executed.  It  abolished  royalty,  de- 
clared it  treason  to  give  any  one  the  title  of  king 
without  act  of  parliament,  set  aside  the  house  of 
lords,  thus  leaving  the  whole  power,  legislative 
and  executive,  vested  in  the  commons. 

This  parliament  was  succeeded  by  one  of 
Oliver  Cromwell's  selection,  called  Barebone's 
parliament,  which,  showing  some  disposition  to- 
wards independence  in  the  exercise  of  its  pow- 


THE    ENGLISH    PARLIAMENT.  69 

ers,  was  dissolved,  and  the  protectorate  pro- 
claimed. The  government  was  now  little  other 
than  a  military  despotism.  The  real  power  all 
centered  in  the  protector,  Oliver  Cromwell.  He 
well  knew  the  necessity  of  governing  by  a  par- 
liament, and  endeavored  to  do  so,  but  failed  to 
get  together  one  that  would  long  satisfy  his 
wishes.  He  had  recourse,  for  this  purpose,  to 
all  the  various  parties.  He  tried  the  religious 
enthusiasts,  the  republican,  the  presbyterians, 
and  the  officers  of  the  army.  He  got  together 
and  dissolved  four  parliaments,  each  one  having 
endeavored  to  wrest  from  him  the  authority 
which  he  exercised,  and  to  rule  in  its  turn. 

He  finally  reigned  alone,  the  government  he 
inaugurated  being  little  other  than  a  military 
despotism.  But  every  measure  of  his  was  con- 
ceived in  wisdom,  prosecuted  with  energy,  and 
crowned  with  success.  His  rule,  although  des- 
potic, was  one  of  the  most  important  in  the  En- 
glish annals. 

On  the  death  of  Cromwell,  his  colossal  pow- 
er, the  exercise  of  which  had  depended  upon  his 
own  personal  energy,  disappeared  at  once,  and 
thereupon,  in  1660,  the  nation   welcomed  back 


7"  THE   BRITISH    CONSTITUTION. 

the  house  of  Stuart,  in  the  person  of  Charles  II, 
the  brother  of  Charles  I.  The  revolution  had 
taught  at  least  three  truths  : 

a.  That  the  king  could  never  again  separate 
himself  from  the  parliament.  That  the  two 
must  reign  together,  neither  one  being  com- 
petent to  reign  alone. 

b.  That  the  house  of  commons  was  the 
stronger  branch  of  the  parliament. 

c.  That  Protestantism  had  achieved  a  com- 
plete and  definite  ascendancy  in  England. 

Some  important  acts  date  their  origin  from 
the  reign  of  Charles  II.  Two  of  these  are 
worthy  of  note.  The  first  was  to  prevent  the 
legislature  being  overawed,  and  their  votes 
coerced  by  riotous  and  seditious  mobs,  under 
the  guise  of  petitioners. 

The  second  was  the  celebrated  habeas  corpus 
act,  which  prescribed  a  remedy,  prompt  and 
efficacious,  in  all  cases  of  arbitrary  imprison- 
ment, without  process  of  law.  It  brought  im- 
mediately before  the  judge,  the  prisoner,  with 
the  cause,  if  any.  of  his  detention,  and  in  case 
the  imprisonment  was  illegal,  discharged  him. 

But   the  reign  of   Charles  presents  a  great 


THE    ENGLISH    PARLIAMENT.  71 

contrast  with  that  of  Cromwell.  He  began  with 
Lord  Clarendon  as  prime  minister,  who  repre- 
sented the  pure  monarchy  party.  Next  we  have 
what  was  termed  the  cabal  ministry,  formed  of 
profligates  and  libertines,*  whose  government, 
although  evincing  practical  skill  in  its  manage- 
ment, and  considerable  intelligence  and  liberal- 
ity, was,  nevertheless,  profoundly  selfish  and 
immoral.  The  nation  rebelled  against  this  gov- 
ernment of  profligates. 

A  new  ministry  was  formed,  a  national  one  ; 
but  that,  with  a  corrupt  king  and  court,  could 
not  gain  possession  of  the  moral  force  of  the 
country.  Charles,  now  having  tired  all  parties, 
commenced  a  career  of  absolute  power.  But  in 
the  midst  of  it  he  was  called  away,  and  the 
crown  descended  upon  the  third  Stuart  brother, 
James  II. 

James,  witli  his  court-party,  his  power  of 
patronage,  his  supple  judges,  and  his  subserv- 
ient crown  lawyers,  succeeded  in  tearing  away 
many  of  the  barriers  of  the  constitution,  and  in 
so  extending  the  prerogative,  as  to  create  an  ab- 
solute  monarchy.     And   yet,   while   seemingly 

•Guizot.  316.  ".IT.  :iis. 


72  THE    BRITISH    CONSTITUTION. 

having  every  political  power  at  his  disposal,  the 
short  period  of  a  single  week  was  sufficient  to 
make  him  a  throneless,  crownless  wanderer. 
This  extraordinary  result  was,  in  great  part,  due 
to  foreign  politics. 

The  two  great  powers  that  were  then  divid- 
ing Europe  between  them  in  their  conflicts  were 
Louis  XIV,  and  William,  Prince  of  Orange. 
The  former  represented  the  Catholic  and  mo- 
narchical principles,  the  latter  the  Protestant  and 
liberal.  England,  through  her  two  kings,  Charles 
II  and  James  II,  had  been,  for  the  most  part, 
unknown  to  herself,  subserving  the  interests  of 
Louis  XIV.  William  was  the  nephew,  and  had 
married  Mary  the  daughter  of  James  I.  He 
was  both  a  statesman  and  a  soldier.  The  En- 
glish nation  sympathized  with  him  and  his  large, 
free,  protectant  principle-.  The  revolution  of 
1688,  occurred,  which,  almost  without  blood- 
shed, placed  William  and  Mary  upon  the  En- 
glish throne. 

A  new  parliament  was  assembled,  which 
declared  that  King  James  had  abdicated,  and 
that  the  throne  was  vacant.  Then  followed  the 
act    of   settlement   by   which,  th^tlirone   being 


THE    ENGLISH    PAULIAMENT.  73 

declared  vacant,  and  James  and  his  children  Ik- 
in»  set  aside,  the  succession  to  the  crown  was 
settled:  1.  Upon  William  and  Man.  2.  Upon 
their  death  without  descendants  upon  Anne,  also 
a  daughter  of  James  I,  and  by  a  subsequent  act. 
3.  Upon  her  death  without  descendants,  then  it 
was  limited  to  the  descendants  of  James  Fs 
daughter,  Sophia,  who  had  married  the  Elector 
Palatine  of  Hanover. 

This  was,  in  every  aspect  of  the  case,  a  revo- 
lution. It  changed  the  entire  order  of  succession. 
James  had  never  abdicated.  Expulsion  is  not 
abdication.  Then  his  descendants  were  set  aside. 
It  presents  a  clear  example  of  a  whole  people, 
the  commons  taking  the  lead,  rising  against  the 
head  of  the  government,  or  at  least  a  co-ordinate 
branch  of  it,  expelling  that  head  or  branch  and 
changing  the  entire  order  of  succession,  and  that 
order  of  succession  has  ever  since  been  followed. 
William  and  Mary,  and  Anne,  successively  died 
without  leaving  any  descendants.  Then  came 
in  the  house  of  Brunswick,  in  the  person  of 
George  I,  the  grandson  of  James  I,  and  son  of 
the  Elector  Palatine.  Ever  since  1089  the  king 
of  England  has  only  been  such  by  virtue  of  this 

4 


74  THE    BRITISH   CONSTITUTION. 

ad  of  settlement.  However  other  kings  may 
claim  to  reign  by  divine  right,  the  king  of  En- 
gland clearly  can  not.  He  reigns  by  virtue  of  an 
act  of  parliament.  It  is  important  to  notice  that 
tin'  power  of  the  people  is  the  real  source  from 
which  England's  king  can  claim  the  exercise  of 
any  authority.  Any  other  conclusion  would 
render  the  English  government  a  government 
de  facto,  and  not  de  jure,  for  the  last  one  hun- 
dred and  ninety  years. 

Along  with  the  act  of  settlement,  and  consti- 
tuting a  part  of  it,  wras  also  a  bill  of  rights, 
which  reasserted  in  clear,  strong  terms,  all  those 
great  cardinal  truths  and  principles  in  govern- 
ments which  the  commons  and  generally  the 
peers  also,  had  been  contending  for  ever  since 
the  grant  of  the  great  charter.  Among  these 
were  the  declaration  that  there  existed  no  power, 
Avithout  consent  of  parliament,  to  suspend  or 
dispense  with  laws  or  their  execution  ;  or  to  levy 
money  for  or  to  the  use  of  the  crown  by  pre- 
tence and  prerogative.  That  the  right  of  peti- 
tion should  be  enjoyed  unimpaired.  That  with- 
out consent  of  parliament,  no  standing  army 
should  be  raised  or  kept  in  the  kingdom  in  time 


THE   ENGLISH    PARLIAMENT.  75 

of  peace.  That  Protestant  subjects  may  have 
arms  for  their  defense.  That  elections  of  mem- 
bers of  parliament  shall  be  free.  That  freedom 
of  speech  and  debate  shall  not  be  impeached  or 
questioned  out  of  parliament.  That  excessive 
bail  shall  not  be  required,  or  excessive  fines  im- 
posed, or  cruel  or  unusual  punishment  inflicted. 
That  jurors  may  be  duly  impaneled  and  returned, 
and  those  passing  upon  high  treason  be  free- 
holders, and  that  for  redress  of  grievances,  par- 
liaments be  held  frequently. 

The  provision  in  regard  to  a  standing  army 
has  rendered  it  necessary  to  pass  acts  annually 
since  that  time,  authorizing  the  keeping  on  foot 
a  defined  number  of  troops,*  and  giving  the 
crown  the  power  of  exercising  martial  law  over 
them.  So,  also,  in  regard  to  the  revenue,  since 
the  reign  of  William  and  Mary,  the  practice  of 
the  commons  has  been,  not  to  vote  the  crown 
certain  large  sums  of  revenue,  to  be  subject  to 
its  application,  but  to  appropriate  specific  parts 
of  the  revenue  to  specific  purposes  of  govern- 
ment. 

The  revolution  of  1688  closes  the  long  line  of 

*Creasy.  298. 


76  THE    BRITISH   CONSTITUTION. 

contests  between  king  and  parliament.  For 
about  seven  hundred  years  those  contests  had 
been  going  on.  As  a  general  fact,  both  the  com- 
mons and  the  nobility  had  been  found  fighting 
together  the  great  battles  of  constitutional  free- 
dom. As  another  general  fact,  although  meet- 
ing with  occasional  reverses,  they  had  always 
been  ultimately  successful.  Always  temperate 
in  their  claims,  wise  in  their  means,  steady  and 
energetic  in  their  course  of  action,  they  had 
always  proved  faithful  to  the  great  trusts  con- 
tided  to  them  ;  and  as  the  last  crowning  evidence 
of  their  triumph,  had  bestowed  the  English 
crown  upon  two  of  their  own  selection,  pre- 
scribed the  direction  it  should  take,  and  annexed 
the  proper  limitations  to  the  exercise  of  its 
power.  Since  that  period,  the  English  constitu- 
tion has  moved  on  uninterruptedly,  its  workings 
eliciting  the  admiration  of  all  thinking  men 
wherever  they  might  be  found.  The  reform  bill 
of  1832  was  called  tor  by  the  great  changes 
which  time  had  wrought  in  the  borough  sys- 
tem." By  it,  fifty-six  boroughs  were  wholly  dis- 
franchised, and  thirty -one  partially.    Forty-three 

1  >  I  i-y.  312. 


THE    ENGLISH    PARLIAMENT.  <  i 

new  ones  were  created,  twenty-two  of  which 
return  two  members,  and  the  remainder  one 
member  each.  By  these  salutary  changes,  and 
others  relating  to  property  qualifications  for 
voting,  the  power  of  the  crown,  and  of  the  differ- 
ent members  composing  the  aristocracy,  has 
been  very  much  diminished  in  procuring  the 
election  of  members,  while  the  middle  classes 
have  risen  to  greater  importance,  and  become 
vested  with  a  larger  proportion  of  political 
power.  Thus  greater  equality  is  given  to  the 
principle  of  representation,  and  its  more  perfect 
results  produced. 


THE    mUTISIl    CONSTITUTION. 


CHAPTER  IV. 


ITS    PRESENT    WORKINGS- 


Having  traced  the  history  of  the  British 
constitution  :  1st.  In  its  sources.  2d.  In  its  char- 
ters. 3d.  In  the  origin  and  growth  of  that  great 
national  council  which  ultimately  became  its 
parliament,  we  are  now  prepared  to  examine  its 
present  workings. 

In  speaking,  however,  of  the  British  consti- 
tution we  are  not  to  understand  that,  as  in  the 
United  States,  and  in  the  different  States,  there 
i»  any  written  instrument  which  arranges  and 
defines  its  different  powers.  England's  constitu- 
tion, like  her  common  law.  is  unwritten.  It  is  the 
gradual  growth  of  centuries.  Both  that  and  the 
common  law  have  been  so  many  developments  of 
human  reason  in  its  most  practical  forms  ;  as  the 
necessities  of  human  progress,  and  the  exigencies 
of  advancing  society  have  from  time  to  time 
demanded.  In  America,  the  written  constitu- 
tion   is    the    fundamental    law   in    subjection   to 


ITS    PRESENT    WORKINGS.  79 

which  all  legislation  takes  place.  In  Great 
Britain  the  great  charter,  the  petition  of  right, 
the  declaration  of  rights,  and  certain  great  prin- 
ciples acknowledged  as  lying  at  the  foundation 
of  all  governmental  action,  altogether  constitute 
what  may  be  termed  the  British  constitution. 
Although,  therefore,  the  king  and  parliament 
are  omnipotent;  and  an  act  which  receives  the 
sanction  of  both  lords  and  commons,  and  the 
assent  of  the  king.  Jbecomes  in  form  a  valid  and 
binding  statute  ;  yet.  if  it  contravenes  any  of 
those  great  principles,  and  thus  sins  against  the 
genius  and  spirit  of  the  government,  it  is  uncon- 
stitutional and  void. 

The  following  are  the  points  to  be  kept  in 
view  in  the  working  of  the  British  constitution: 

L.  The  distribution  of  political  power  in  ref- 
erence to  localization  and  centralization. 

"2.  The  co-ordinate  branches  of  which  the 
central  power  is  composed. 

3.  The  powers  lodged  in  each. 

4.  The  checks  which  each  one  is  capable  of 
exercising  against  the  others. 

1.  The  distribution  of  political  power  in  ref- 
erence to  localization    and    centralization.     We 


80  THE    BRITISH    CONSTITUTION. 

have  noticed  the  contests  between  royalty  and  the 
commons  as  the  feudal  aristocracy  declined,  and 
in  most  governments  the  ultimate  triumph  of  roy- 
alty attended  by  a  more  or  less  complete  central- 
ization. The  establishment  and  exercise  of  pure 
royalty  is  consistent  onlv  with  a  high  degree  of 
centralization. 

J > \  this  term  is  meant  a  government  proceed- 
ing entirely  from  the  central  power.  It  i>  not 
necessarily  a  despotism,  or  a  monarchy.  An 
aristocracy,  or  any  other  form  of  government, 
in  which  all  political  power  centers  in  one  com- 
mon head,  whether  in  a  cabinet  or  a  general 
council,  is  a  centralized  government.  Not  only 
is  the  political  power  felt  and  exercised  through 
the  whole  society,  but  all  the  officials,  also,  are 
appointed  by,  and  derive  all  their  power  from, 
the  same  source.  The  most  intensely  central- 
ized government  is  the  severest  despotism.  In 
such,  no  local  power  exists  to  counteract  the 
exercise  of  the  central  power. 

On  the  other  hand,  the  exercise  of  well  de- 
fined local  powers  is  an  important,  perhaps 
an  essential,  element  in  the  composition  of  a  free 
government.     They  operate  as  a  most  salutary 


ITS    PRESENT   WORKINGS.  81 

check  upon  the  unrestrained  oppressive  action  ot 
the  central  power.  They  essentially  modify  it 
in  its  exercise,  and  within  constitutional  and 
well  defined  limits,  are  in  the  highest  degree 
beneficial.  In  this  country  the  political  power 
exercised  in  the  school  districts,  the  towns,  vil- 
lages, cities,  and  counties,  affords  a  salutary 
modification  to  that  exercised  by  the  State  ;  and, 
higher  still,  that  possessed  by  the  State,  to  that 
exercised  by  the  United  States. 

In  England  local  power  was  early  in  asserting 
its  claims.  It  was  bequeathed  to  western  Eu- 
rope by  the  German  races.  Among  the  Saxons 
each  local  district  had,  in  local  matters,  the  gov- 
ernment of  itself.  The  county  court,  so  early 
established  in  England,  so  purely  local  in  its  offi- 
cers and  jurisdiction,  so  independent  in  its  sphere 
of  action,  has  contributed  largely  to  restrain  the 
action  of  the  central  power. 

The  object,  however,  is  not  alone  to  restrain, 
or  even  to  modify.  It  is  to  devolve  upon  local 
authorities  the  exercise  of  those  powers  that  are 
purely  of  a  local  character,  and  affecting  local 
objects.  The  relief  of  the  poor,  the  repair  of 
roads  and  bridges,  the  preservation  of  the  peace, 


82  THE    I'.KITISII    CONSTITUTION. 

the  administration  of  justice,  and  a  multitude  of 
other  local  acts  are  effected  through  these  mean-. 
Ajmong  these  are  also  included  the  judicial  and 
administrative  powers  confided  to  justices  of  the 
peace,  and  the  executive  power  exercised  by  the 
sheriff.  The  county  courts,  with  a  few  excep- 
tions, must  try  all  causes  not  exceeding  £20. 

"  There  are  almost  innumerable  other 
spheres  of  political  action,  each  comparatively 
humble  and  limited  in  itself,  but  collectively,  of 
infinite  importance,  on  account  of  the  universal- 
ity of  their  operation."  and  the  daily  and  hourly 
duties  and  interests  of  every  man's  life  which 
they  affect.  Every  parish  has  its  vestry  :  that  is 
to  say,  an  assembly,  where  the  inhabitants  of 
a  parish  meet  together  for  the  dispatch  of  the 
affairs  and  business  of  the  parish.  Every  borough 
has  its  town  council,  every  poor  law  union  has  its 
board  of  guardians.  Each  of  these  is  a  deliber- 
ative, a  legislative,  and  a  taxing  body.  In  each 
of  these,  the  elections  of  various  functionaries 
are  conducted  ;  and  many  of  them  are  them- 
selves representative  bodies,  varied  and  renewed 
by  general  annual  elections." 


ITS    PRESENT    WORKINGS.  S3 

In  the  election  and  service  of  these  local  offi- 
cials, generally  two  tacts  strike  ns  : 

1.  The  electors  of  all  such  arc  required  to 
have  some  property  qualification.* 

2.  With  few  exceptions,  the  local  authorities, 
both  in  town  and  county,  receive  no  salary.  It 
is  understood  to  be  every  man's  duty  to  aid  in 
the  maintaining  of  good  order,  and  in  sustaining 
the  social  economy  of  the  district  in  which  he 
resides. 

Several  results  flow  from  these  local  organi- 
zations : 

1.  It  is  a  government  within  a  government, 
both  in  its  administrative  and  judicial  functions. 

2.  It  affords  opportunities  to  ambitious  as- 
pirants, to  expend,  on  a  small  scale,  those 
energies  which  would  otherwise  be  unemployed, 
or  exert  a  hurtful  influence. 

3.  It  gives  opportunities  to  boisterous  spirits, 
to  expend  themselves  without  harm,  and  thus 
operates  as  a  safety  valve  to  conduct  away 
innocently,  what  might  otherwise  produce  ex- 
plosion and  destruction. 

4.  It  serves  as  a  school  in   which  are   con- 

♦Creasy,  339 


S4  THE    BRITISH    CONSTITUTION. 

stantly  kept  in  training,  those  who  may  ulti- 
mately be  transferred  to  higher  spheres  of  use- 
fulness, and  display  themselves  on  the  nation's 
theatre. 

.">.  It  keeps  alive  and  nourishes  in  the  homes 
of  the  English  people  that  knowledge  of*  politi- 
cal transactions,  and  those  feelings  of  freedom 
and  independence  that  impart  such  strength  and 
power  to  the  English  character. 

6.  It  affords  ready  facilities  to  organization, 
and  aggressive  resistance  to  all  tyrannical  ex- 
ercise of  power. 

7.  It  constitutes  so  many  independent  cen- 
tres in  which  are  discussed  the  proceedings  of 
the  central  power,  and  so  many  distinct  trib- 
unals sitting  in  judgment  upon  such  proceed- 
ings. 

8.  It  is.  therefore,  the  one  principal  source 
of  that  public  opinion,  which  in  England  is  so 
omnipotent  on  all  political  questions. 

!».  It  is  a  development  of  that  self-governing 
spirii  of  the  English  people  which  enables  them 
to  administer  correctives  to  misgovernment.  and 
even  to  continue  on  their  accustomed  course, 
when  by  the   resignation  of  the   ministry,  the 


ITS   PRESENT   WORKINGS.  85 

machinery  of  the  central  government  stands 
still. 

These  several  local  administrations  are  di- 
rectly connected  with  the  general  government 
by  their  representation  in  the  house  of  com- 
mons. This  leads  to  the  consideration  of  the 
elections  to  that  house. 

The  reform  bill  of  1832,  as  we  have  already 
seen,  corrected  many  of  the  evils  growing  out 
of  the  old  rotten  borough  system.  There  is 
still,  however,  by  no  means  an  equality  of  rep- 
resentation of  the  commons  in  parliament.  But 
the  approach  towards  it  is  so  considerable,  the 
rotten  boroughs  so  many  of  them  disfranchised, 
and  the  base  of  representation  so  widened, 
that  the  power  of  the  crown  in  procuring  the 
election  of  members,  and  thus  controlling  the 
action  of  parliament,  is  very  much  diminished. 

Another  fact  we  have  also  to  notice,  and 
that  is,  the  property  qualification  necessary  to 
constitute  an  elector.  The  right  of  voting  for 
borough  representation  is  limited  to  the  house- 
holder who  takes  and  resides  in  a  ten  pound 
house,  while  that  of  voting  for  a  county  repre- 
sentative requires  only  a  forty  shilling  freehold. 


86  THE    BRITISH    CONSTITUTION. 

The  practical  resull  of  this  has  been  thai  in  the 
general  flection  of  L852,  it  is  estimated  that 
something  more  than  one  man  in  every  five  in 
England  and  Wales  exercised  the  elective  fran- 
chise.* The  number  elected  and  composing 
the  house  of  commons  amounts  to  the  large 
number  of. 658;  Hut  of  this  number  there  are 
seldom  over  five-sixths  who  attend. f 

The  central  power  in  Great  Britain,  in  its  ex- 
ecutive, legislative,  administrative,  and  ultimate 
judicial  functions,  is  exercised  through  the  king, 
lords  and  commons.  These  are  the  great  co-or- 
dinate branches  of  the  government.  It  is  in 
the  powers  lodged  in  each  of  these  respectively, 
and  the  checks  which  each  is  capable  of  exer- 
cising against  the  others,  that  we  are  to  find  the 
solution  of  the  problem  so  long  sought  for,  and 
here  for  the  first  time  found,  how  it  is  possible 
to  confer  powers  and  energies  of  unlimited  ex- 
tent, and  yet  throw  around  them  such  safe- 
guards as  entirely  to  protect  human  freedom 
from  the  severity  of  their  exercise. 

Of  these  co-ordinate  branches,  the  crown  may 
well    claim   the  first  place.     The  crown  is   su- 

♦Creasy,  81?  tBrougham.  11'.  317 


ITS    PRESENT    WORKINGS.  87 

preme.  Its  wearer  and  owner  is  an  essential 
part  of  the  sovereign  legislative  power.  It  is 
the  king  who  issues  his  writs  to  the  sheriffs  of 
the  different  counties,  commanding  them  to 
cause  a  return  of  members  to  parliament.  .  Thai 
body  convenes  in  obedience  to  his  call.  He  is 
the  nation's  chief  magistrate  and  all  other  mag- 
istrates act  by  his  commission. 

With  the  king  is  lodged  the  executive 
power.  As  executive  he  has  the  appointing 
power.     In  each  county  he  appoints  : 

1.  The  lord-lieutenant,  who  represents  the 
sovereign  in  his  rights  and  powers  as  chief  of 
the  old  common  law  military  force  of  each 
county.* 

2.  The  sheriff,  who  is  the  civil  executive  offi- 
cer of  the  county. 

3.  The  justices  of  the  peace,  who  are 
charged  with  the  performance  of  both  judicial 
and  administrative  duties.  All  these  we  have 
just  mentioned  act  without  pay.f 

He  also  appoints  to  all  offices  in  the  army 
and  navy.  He  has  the  entire  disposition,  as 
commander  in  chief,  of  all  those  forces. 

♦Creasy,  328.  Udem,  :;::•.'. 


^  THE   BRITISH    CONSTITUTION. 

He  i>  also  externally,  in  dealings  with  other 
states,  the  visible  representative  of  the  majesty 
of  the  state.  He  exercises  the  sole  prerogative 
of  making  war  or  peace.  He  enters  into,  and 
carries  on,  all  negotiations,  and  forms  all  alli- 
ances. In  judicial  matters  he  has  ever  been 
regarded  as  the  fountain  of  justice.  He  superin- 
tends the  administration  of  the  civil  and  criminal 
law.  and  confirms,  or  remits  all  sentences. 

His  first  business,  upon  receiving  the  crown, 
is  to  surround  himself  by  constitutional  and  re- 
sponsible advisers.  These  carry  on  the  entire 
administration  in  the  name  of  the  sovereign. 
They  are  about  fifteen  in  number,  and  are  call- 
ed ministers  of  state.  They  are  privy  council- 
lors, and  together  form  the  cabinet."  The  chief 
is  the  first  lord  of  the  treasury,  called  by  way 
of  distinction  the  premier,  or  prime  minister. 

Another  important  cabinet  officer  is  the 
chancellor  of  the  exchequer,  who  is  charged 
with  the  finances  of  the  empire.  There  are  also 
four  secretaries  of  state,  the  home,  foreign, 
colonial,  and  war. 

Another  member  of  the  cabinet  is   the   lord 

I  reasy,  327. 


ITS    PRESENT   WORKINGS.  89 

chancellor,  who  is  intrusted  with  the  great  seal, 
and  is  the  keeper  of  the  king's  conscience. 

Theoretically  all  the  members  of  the  cabinet 
may  be  selected  by  the  king  from  among  any 
of  his  subjects. 

But  practically  his  choice  is  quite  limited. 
His  ministers  can  only  conduct  the  government 
and  rule  through  majorities  in  parliament. 
They  must,  therefore,  belong  to  the  party 
which  is  dominant  in  parliament.  They  must 
be,  at  least  several  of  them,  members  of  parlia- 
ment, and  gifted  with  powers  adequate  to  se- 
curing majorities  there.  The  moment  the  min- 
istry are  outvoted  in  parliament,  they  have  no 
other  alternative  than  to  resign.  Another  cabi- 
net must  be  formed,  composed  the  more  gen- 
erally by  those  of  the  opposite  party,  who  in 
their  turn,  must  keep  with  them  the  parlia- 
mentary majority. 

The  parliament,  exclusive  of  the  crown,  con- 
sists of  two  houses,  the  lords  and  commons. 
The  latter  is  elective,  and  its  power  reposes  on 
the  representative  system.  When  a  new  par- 
liament is  to  be  summoned,  a  writ,  under  the 
great  seal,  is  issued  to  the  sheriff  of  each 
4* 


'.'<!  THE    BRITISH    CONSTITUTION. 

county,*  requiring  him  to  cause  the  election  of 
the  county  representatives,  and  also  of  those  of 
each  city  and  borough  within  his  shire  that  re- 
turns members.  The  sheriff  then  issues  his  pre- 
cepts to  the  head  of  each  of  those  municipal 
constituencies,  who  return  the  same  to  him 
with  the  names  of*  the  persons  elected,  of  all 
which  a  general  return  is  made  to  the  lord  chan- 
cellor. 

The  lords,  composing  the  upper  house,  con- 
stitute a  permanent  branch  of  the  legislature, 
subject  to  little  fluctuations  or  changes.  They 
sit  in  their  own  right, f  but  may  be  considered 
as  representing  their  powerful  families  and  im- 
mediate connections,  as  also  all  the  great  land 
owners  in  the  country.  The  house  of  lords  con- 
sists of  peers,  both  spiritual  and  temporal.  The 
prelates,  equally  with  the  barons,  are  entitled  to 
.sit  in  the  house,  the  former  by  virtue  of  the 
sees  which  they  respectively  hold. 

The  crown  possesses  a  prerogative,  in  refer- 
ence to  the  house  of  lords,  which  may  be  some- 
what dangerous  in  its  exercise.  This  relates  to 
the  power  of  creating  peers  to  an  unlimited  ex- 

*Creasy,  380.  t  Brougham.  Ill,  804. 


ITS    PRESENT    WORKINGS.  91 

tent.  This  may,  mid  indeed  on  several  occa- 
sions has  been  exercised  to  influence  the  proceed- 
ings in  parliament.'"'  The  sudden  creation  of 
twelve  peers  in  the  reign  of  queen  Anne  carried 
a  question  of  importance  in  the  house  of  lords. 
So  it  would  be  possible  to  carry  any  question 
through  that  house,  by  the  creation  of  a  neces- 
sary number  of  new  peers.  That  necessity. 
however,  could  only  arise  where  the  king-  and 
commons  were  on  one  side  and  the  upper  house 
on  the  other.  The  passage  of  the  reform  bill  of 
1S32  came  very  near  requiring  the  exercise  of 
this  extraordinary  prerogative.  It  has.  how 
ever,  never  been  exercised  to  the  injury  of  the 
country. 

The  commons  alone  possess,  or  rather  exer- 
cise, the  right  of  originating  supply  bills,  or 
any  involving  the  necessity  of  taxation.  The 
upper  house  has  never  abandoned  its  claim  to 
originate  and  alter  money  bills,  as  well  as  the 
lower;  but  in  practice  the  right  has  never  been 
there  asserted,  the  commons  alone  having  origi- 
nated every  measure  of  supply.  As  the  lords 
originate  no   money  bills,  so  they   exercise    no 

♦Brougham,  III.  307. 


'■•2  THE    BRITISH    CONSTITUTION. 

(lower  to  alter  or  amend  those  sent  up  from 
the  commons,*  but  cither  wholly  accept  or  re- 
ject them.  This  all  important  instrument  of 
power  and  remedial  agent,  the  commons  keep 
exclusively  to  themselves. 

There  is  also  another  point  on  which  the 
commons  claim  the  exclusive  right  of  originating 
measures,  +  and  that  relates  to  the  election  of  its 
own  members.  They  assert  this  as  an  inherent 
right,  and  also  as  inalienable,  maintaining  that 
the  house  cannot  convey  it  to  any  other  body. 

The  laws  are  administered  by  the  different 
courts,  and  with  the  exception  of  the  judges  in 
the  ecclesiastical  courts,  and  some  other  trifling 
exceptions.^;  the  crown  has  the  exclusive  power 
of  appointing  all  the  judges.  Their  tenure  is 
for  life  or  during  good  behavior.  They  are  ir- 
removable except  by  a  joint  address  of  the  two 
houses  of  parliament,  and  as  this  requires,  in 
addition,  the  assent  of  the  crown.  i.t  is  practical- 
ly a  statute,  having  the  concurrence  of  the 
whole  three  branches  of  the  legislature.  Thus 
the  common  law  judges,  although  named  by  the 

•Brougham.  III.  305.  tldem.  30fi.  {Idem,  310. 


ITS   PRESENT   WORKINGS.  93 

crown,  are,  nevertheless,  independent  in  the 
tenure  of  their  office. 

The  lord  chancellor,  who  has  only  civil  juris- 
diction, and  who  as,  keeper  of  the  great  seal, 
and  the  king's  conscience,  forms  a  member  of 
the  cabinet,*  holds  his  place  only  during  plea- 
sure, but  the  other  equity  judges,  the  master  of 
the  rolls,  the  vice  chancellors,  and  the  masters 
in  chancery,  all  hold  their  offices  during  life  or 
good  behavior. 

To  guard  still  further  the  purity  of  the 
bench,  the  judges  are  disabled  from  sitting  in 
the  house  of  commons. 

•"Thus"  says  Lord  Brougham,  "'the  judicial 
power,  pure  and  unsullied,  calmly  exereised 
amidst  the  uproar  of  contending  parties  by  men 
removed  above  all  contamination  of  faction, 
all  participation  in  either  its  fury  or  its  delu- 
sions, held  alike  independent  of  the  crown,  the 
parliament  and  the  multitude,  and  only  to  be 
shaken  by  the  misconduct  of  those  who  wield  it, 
forms  a  mighty  zone  which  girds  our  social 
pyramid   round    about,    connecting    the    loftier 

♦Brougham,  III,  371. 


94  THE    BRITISH    CONSTITUTION. 

and  narrower,  with  the  humbler  and  broader 
regions  of  the  structure,  binding  the  whole 
together,  and  repressing  alike  the  encroach- 
ments and  the  petulance  of  any  of  its  parts.'1 

With  the  commons  alone  lies  the  power  of 
impeachment,  but  that  body  has  no  power  to 
try  it.  Its  trial  is  before  the  house  of  lords, 
and  its  ultimate  decision  rests  with  that  body. 
And  so  other  judicial  powers  rest  with  the 
house  of  lords.  It  is  the  court  of  last  resort,  of 
ultimate  appellate  jurisdiction  in  all  cases  of  law 
and  equity  from  the  whole  united  kingdom. 
This  house  always  contains  peers  who  till,  or 
have  tilled,  the  highest  stations  in  both  courts  of 
law  and  equity.  These  are  commonly  called 
the  law  lords,  and  practically  it  is  those  who 
have  the  entire  decision  of  the  ease-  brought 
before  the  house. 

Thus  of  the  three  estates  of  British  realm 
we  have  : 

1.  The  crown,  which,  whatever  may  in  for- 
mer times  have  Ween  claimed  of  its  existing  by 
divine  right,  by  the  grace  of  God,  can  certainly. 
since  the  act  of  settlement  in  1689.  lay  claim  to 
no   higher  warrant    than    the   .joint    will    of   the 


ITS    PRESENT   WORKINGS.  t>5 

aristocracy  and  people  of  England.  In  this  we 
have  centered  the  executive  power  a  large  pro- 
portion of  the  administrative,  which  is  exercised 
through  the  ministry  composing  the  cabinet. 

The  crown  is  also  a  neeessary  clement  in  thq 
composition  of  the  legislative  power.  Xo  act  of 
parliament  can  claim  the  force  of  a  law  be  tore 
it  receives  the  sanction  of  the  crown.  It  has 
thus  a  veto  upon  all  the  legislation  of  the  lords 
and  commons. 

The  king's  person  is  inviolable.  Xo  legal 
proceeding  can  be  instituted  against  him.  The 
received  maxim  is,  that  the  il  king  can  do  no 
wrong."  But  the  king  only  acts  through  his 
constitutional  advisers,  his  ministers.  And  al- 
though he  is  not  responsible  yet  they  are  ;  and 
through  them  his  administration  is  made  ac- 
countable. 

•2.  The  house  of  commons,  a  representative 
body,  standing  in  the  place,  and  wielding  the 
political  powers  of  the  people  of  Great  Britain. 
Their  function  is  chiefly  legislative.  They  may 
originate  every  legislative  measure.  They 
must  originate  all  supply  bills,  requiring  the 
necessity    of    taxation.     They    have    also    the 


96  THE    BRITISH    CONSTITUTION 

power  of  impeachment.  They  are  the  changing 
element 

:!.  The  house  of  lords,  the  permanent  ele- 
nii'iit  in  British  legislation.  Its  habits,  interests, 
prejudices,  .-ill  tend  to  render  it  a  conservative 
body.  It  stands  between  the  crown  and  the 
people,  ready  to  throw  its  weight  into  either 
scale  that  may  be  required  to  adjust  aright  the 
balance. 

In  the  individuals  composing  this  body,  is  to 
be  found  the  highest  style  of  culture  ;  the  most 
illustrious  rank  united  with  vast  possessions, 
and  when  to  these  are  added  great  capacity,  en- 
larged statesmanlike  views.  ;i  power  of  origin- 
ating all  legislative  measures  except  money 
bill-,  and  the  highest  judicial  power  in  the  na- 
tion, we  must  recognize  in  it  an  estate  in  the 
highest  degree  important  in  the  British  constitu- 
tion. These  three  together  compose  the  parlia- 
ment, "that  parliament  of  Great  Britain, 
which."  says  Edmund  Burke,  "sits  at  the  head 
of  her  extensive  empire  in  two  capacities,  one. 
as  the  local  legislation  of  this  island,  providing 
for  all  things  at  home,  immediately,  and  by  no 
other  instrument  than  the  executive  power.    The 


ITS    PRESENT   WORKINGS.  9? 

other,  and,  I  think,  her  nobler  capacity,  is  what 
I  call  her  imperial  character,  in  which,  as  from 
the  throne  of  heaven,  she  superintends  all  the 
seVeral  inferior  legislatures,  and  guides  and 
controls  them  without  annihilating  any." 

The  judicial  exists  independent  of  the  legis- 
lative and  executive,  charged  with  functions,  of 
all  others  perhaps  the  most  necessary  for  the 
preservation  of  the  state,  the  administration  of 
the  law  ;  and  looked  to  in  times  of  storm  and 
peril  as  the  ultimate  conservative  power  in  the 
state. 

A  brief  allusion  to  the  evils  to  be  guarded 
against,  and  the  checks  which  the  constitution 
provides  as  the  safeguards  against  their  occur- 
rence, is  all  that  now  remains  for  our  considera- 
tion. 

These  evils  are  threefold: 

1.  The  subversion  of  the  upper  and  lower 
houses  resulting  in  the  supremacy  of  the  king, 
the  establishment  of  a  despotism. 

2.  The  subversion  of  the  crown  and  the  com- 
mons, and  the  supremacy  of  the  lords  ;  the  es- 
tablishment of  an  aristocracy. 

3.  The   subversion   of    the   crown    and   the 

G  5 


98  the  British  constitution. 

lords,  and  the  supremacy  of  the  commons  ;  the 
establishment  of  a  democracy. 

To  comprehend  fully  the  force  of  the  checks 
by  which  each  and  all  these  evils  may  be  con- 
stitutionally averted,  we  must  understand  that 
acts  of  parliament  constitute  the  fundamental 
law  of  the  British  empire.  That  they  are  om- 
nipotent, and  are  to  Great  Britain  what  both 
constitutional  and  legislative  provisions  are  to 
us.  We  must  also  understand  further  that  no 
act  of  parliament  can  be  deemed  complete,  and 
have  conceded  to  it  the  force  of  law  unless  it 
has  received  the  assents  of  the  three  estates,  the 
king,  lords,  and  commons.  Now  let  us  proceed 
to  inquire  what  checks  each  one  of  these  three 
co-ordinate  branches  has  upon  the  others  ;  what 
means  of  defence  the  constitution  has  placed  in 
the  power  of  each,'  so  that  that  integrity  of  each 
can  be  fully  preserved. 

The  crown  is  amply  provided: 

1.  By  its  large  executive  and  administrative 
powers  ;  its  power  of  appointments,  its  com- 
mand of  all  armies  and  navies. 

2.  By  its  power  of  increasing  the  house  of 
lords  by   the   creation   of  new   peers,  thus,   if 


ITS    PRESENT    WORKINGS.  99 

necessary,  giving  the  upper  house  a  preponder- 
ance over  the  lower. 

3.  By  its  veto,  thus  arresting  and  destroying 
in  its  progress  towards  maturity  every  act 
which  it  deems  essentially  prejudicial  to  itself, 
or  to  the  country,  although  it  may  have  passed. 
and  received  the  sanction  of  both  houses. 

4.  By  its  power  of  proroguing  or  dissolving 
parliament  at  any  moment  when  it  deems  that 
the  public  exigencies  so  require. 

The  house  of  lords  is  sufficiently  protected: 

1.  By  the  immense  personal  influence  of  its 
members,  arising  from  their  great  wealth,  com- 
manding talents,  and  powerful  connections. 

2.  By  its  constituting  the  high  court  of  im- 
peachments, and  the  highest  appellate  court  in 
the  realm. 

3.  By  its  constitutional  negative,  or  veto, 
which  it  may  interpose  upon  any  and  all  acts 
which  come  up  before  it  from  the  house  of  com- 
mons. 

It  must  be  admitted,  however,  that  the  house 
of  lords  has  a  less  amount  of  constitutional 
power,    can   put   into   operation    less    effective 


100  rHE    BRITISH    CONSTITUTION. 

checks    that    are    purely    constitutional,    than 
either  one  or  the  other  co-ordinate  branches. 
The  commons  are  amply  protected: 

1.  By  their  power  of  impeaching  every  mem- 
ber of  the  king's  cabinet. 

2.  By  the  negative,  or  veto  power,  which 
they  can  put  upon  every  act  which  comes  up 
before  them.  This  is  now  considered  only  in 
reference  to  their  own  protection. 

3.  By  their  power  of  changing  the  entire 
policy  of  the  crown,  and  compelling  it  to  adopt 
a  different  policy,  or  to  resort  to  the  hazardous 
measure  of  dissolving  the  parliament,  by  voting 
down  any  government  measure,  thus  leaving 
the  ministers  in  the  minority,  and  compelling  a 
change  in  the  cabinet,  or  stopping  the  wheels  of 
government  until  such  change  shall  be  made. 

4.  By  refusing  all  supplies  to  carry  on  the 
government  until  all  the  grievances  the}*  com- 
plain of  shall  be  redressed. 

In  full  view  of  the  gradual  growth  of  the 
British  constitution  :  of  its  localizing  and  cen- 
tralizing forces:  of  the  arrangement  of  its  co-or- 
dinate branches;  of  the  powers  assigned  to  each 
branch  ;  and  of  the  strong  checks  possessed  by 


ITS   PRESENT   WORKINGS.  101 

each  as  against  the  others;  it  may  be  .safely  pro- 
nounced that  of  all  efforts  hitherto  made  by  the 
race  in  so  creating  and  arranging  the  political 
forces  that  enter  into  the  governmental  element 
as  to  secure  their  greatest  harmony  of  action, 
no  other  ever  devised  has  evinced  such  deep 
sagacity,  such  profound  forecast,  and  such 
wealth  of  wisdom.  To  it  must  come  the  great 
statesmen  of  all  countries,  and  of  all  times,  to 
study  the  science  of  government.  Under 
its  strong  guaranties  repose  in  perfect  safety 
those  indomitable  forces  that  in  all  quarters  of 
the  world  are  swaying  the  sceptre  of  universal 
empire  ;  that  colossal  power  whose  morning 
drum-beat,  following  the  course  of  the  sun,  and 
keeping  company  with  the  hours,  encircles  the 
globe  daily  with  the  martial  airs  of  England. 


INDEX. 


Anglo  Saxon,  burghs,  10;  church  establishment,  13;  classes 
of  people,  8;  government,  11,  12;  institutions,  7;  polit- 
ical (ii visions,  9;  revenue,  13;  townships,  9 

Assemblies,  Norman,  41. 

Barebones  Parliament,  68. 

Barons,  Council  of,  anions  the  Normans,  41. 

Pull  of  Rights,  74. 

British  Constitution,  checks  to  evils,  98;  evils  of,  97  ;  mag- 
na charta,  26-32;  new  charter  by  Henry  III.,  32: 
points  in  its  workings,  79  ;  steps  in  its  growth,  24;  un- 
written, 78. 

British  guarantees  wrested  from  the  king,  24. 

Brunswick,  house  of  73. 

Cabal,  ministry,  71. 

Cabinet,  the,  88. 

Central  power,  how  exercised,  86. 

Ceorls,  or  freemen  8. 

(  hancellor,  vice,  tenure  of  office,  93. 

Charles  I.,  66,  67. 

Charles  II.,  70. 

Charters,  by  Henry  I.,  26;  by  Henry  II.,  26  ;  by  Henry 
III,  32;  by  Stephen.  26;  by  William,  25;  confirmed 
by  Edward,  35;  established,  37. 

Civil  War,  32. 

Clarendon.  Lord,  prime  minister,  71. 

Clement  V.,  36. 

Commons,  consulted  in  national  affairs,  52;  elections  to,  85; 
first  rise  into  importance,  42  ;    functions  of,  95  ;  how 
protected,  100;  no  equality  of  representation  in,  85; 
powers  of,  50,  57,  91,  92,  94. 
(102) 


INDEX.  103 

Crown,  the,  amply  protected,  98,  99;  cabinet  of,  88;  its 
powers,  87;  prerogative  of,  90. 

Deputies,  county  and  borough,  42 

Edward  I.,  154-36. 

Edward  III.,  54,  55. 

Electors  in  counties  and  boroughs,  48. 

England,  common  law  in,  20 ;  condition  in  twelfth  century, 
22 

Feudal  Aristocracy,  61. 

Feudalism,  its  results,  19. 

Free  Government,  nature  of,  39. 

Free.  Institutions,  under  the  Tudors,  65. 

Government  administrated  by,  94,  95;  centralized,  80; 
charters,  26-28 ;  checks  to  the  evils  of,  98 ;  executive, 
39;  free  local  powers  essential  to,  81;  growth  of,  25;  in 
the  twelfth  century,  12;  judicial,  39;  legislative,  39; 
of  the  Anglo  Saxons,  11,  12;  powers  of,  40. 

Habeas  Corpus  Act,  70. 

Henry  VIII.,  absolute,  61. 

Industry,  influence  of,  63. 

James  I.,  66. 

James  II.,  71. 

John  I.,  32,  33. 

Judges,  how  appointed,  92. 

Judicial  functions.  97. 

King,  among  Anglo  Saxons,  11;  reigns  by  act  of  Parlia- 
ment, 74. 

Langton,  Archbishop,  32. 

Local  Powers,  connected  with  general  government,  81-85; 
election  and  service  of  officials,  82. 

Long  Parliament,  acts  of,  68. 

Lord  Chancellor,  89-93. 

Lords,  House  of,  consists  of,  90;  court  of  last  resort,  94; 
how  protected,  98,  99;  position,  95. 

Magna  Charta.  25-28;  defect  of,  32;  provisions  of,  26,  27. 

Master  of  the  Rolls,  93. 


1<>4  INDKX. 

Normandy,  feudalism  in.  1?  ;   situation  of,  14. 

Normans,  introduce  feudalism,  18;   then'  character,  14. 

<  ►xford,  assembly  at,  42. 

Parliament,  acquires  much  of  its  presenl  constitution,  54; 
assumption  of,  38;  barebones,  68;  called  by  Edward 
I.,  44;  composition  of,  45.  46,  89;  convoked  by  Henry 
III.,  43;  contests  with  the  king  closed.  76;  legislative 
rights  of,  52,  55,  56;  long,  acts  of,  68  ;  of  1295,  45;  of 
1688,  72;  origin  of,  44;  revolutionary,  73;  union  of 
town  and  county  representatives,  49. 

Parties,  under  Charles  1,  66; 

Petition,  importance  of,  54;  right  of,  53. 

Property,  qualifications,  85. 

Hot  ten  borough  system  origin,  44. 

Royalty,  in  the  ascendant,  61. 

Runnymede,  assembly  at.  28. 

Saxon,  hundred,  9. 

Slaves,  8. 

Speaker  of  the  House  of  Commons,  55. 

Thanes,  8 

Township,  as  a  political  division.  9. 

Trial,  by  jury,  11. 

Tudors,  their  reign,  61-63. 

Vassals,  22. 

Villeinage,  19. 

William  III.  of  Orange.  72. 

William  Rufus,  14,  22,  25. 

Witenagemote,  of  the  Ancrlo  Saxons,  11,  12,  41. 


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